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ADAPTED TO THE 



GENERAL STATUTES OF NEW HAMPSHIRE. 



BY 

CHARLES R? 1 MORRISON, 

MANCHESTER, N. H. 



CONCORD: 
PUBLISHED BY B. W. SANBORN & CO 

1868. 

Copy Z 






Entered according to an act of Congress, in the year 1868, 

BY B. W. SANBORN & CO., 

In the Clerk's office of the District Court of New Hampshire. 



IV) l 



PRINTED BY JOHN B. CLARKE, MANCHESTER, N, #. 



r 



ANALYSIS OF CONTENTS, 



Preliminary Chapter. — Construction of Statutes 



PAGE 

1 



TITLE I 



TOWNS. 

Chapter 1 . — Powers and Duties of Towns 8 

Chapter 2. — Executions against Towns and School Districts . . 18 

Chapter 3. — Militia 19 

Chapter 4. — Riots 24 

Chapter 5. — Proprietary Records 27 

Chapter 6. — Town Lines 29 



TITLE II. 



TOWN MEETINGS. 



Chapter 7. — Warning Town Meetings 

Chapter 8. — Regulating and Posting Check-List 

Chapter 9. — Rights and Qualification of Voters 

Chapter 10. — Conduct and Government of Town Meetings 

Chapter 11. — Record of Town Meeting 

Chapter 12. — State and County Officers . 

Chapter 13. — Contested Elections .... 

Chapter 14. — Representatives in Congress . 

Chapter 15. — Electors of President and Vice-President 



34 
43 
47 
55 
60 
64 
70 
71 
73 



IV ANALYSIS OF CONTENTS. 



TITLE III. 

TOWN OFFICERS. 

Chapter 16. — Election, Oath and Duties of Town Officers . . 75 

Chapter 17. — Appointments, Removals and Vacancies . . . 87 

Chapter 18. — Hearing before Town Officers 91 

Chapter 19. — Drawing Jurors . 97 

Chapter 20. — Fences and Common Fields . . . • .102 

Chapter 21. — Strays and Lost Goods Ill 

Chapter 22. — Pounds and Impounding 114 

Chapter 23. — Floating Timber .127 

Chapter 24. — Mills and their Repair 130 

Chapter 25. — Marriages, Births and Deaths 135 

Chapter 26. — Surveyors and Inspectors of Wood and Lumber . . 143 

Chapter 27. — Weights and Measures 148 

Chapter 28. — Peddlers, Transient Traders and Dealers in Old Metals 158 

Chapter 29. — Wild Animals, Dogs and Sheep 156 



TITLE IV. 



ASSESSMENT AND COLLECTION OF TAXES. 

Chapter 30. — Persons and Property liable to Taxation . . . 161 
Chapter 31. — Where and to Whom to be Taxed . . . .164 

Chapter 32. — Annual Invoice and Assessment 170 

Chapter 33. — Abatement of Taxes 182 

Chapter 34. — Collectors of Taxes 183 

Chapter 35. — Collection of Resident Taxes ..... 183 

Chapter 36. — Collection of Taxes of Non-Residents .... 194 

Chapter 37. — Taxation of Railroads 204 

Chapter 38. — Bank Stock and Savings Banks 206 

Chapter 39. — Extents 208 

Chapter 40. — Return of Inventories to Secretary of State . . . 212 



TITLE V. 



HIGHWAYS. 



Chapter 41. — Laying out and Discontinuing Highways . . . 214 

Chapter 42. — Making and Repairing Highways 240 

Chapter 43. — Highways not in any Town 251 

Chapter 44. — Special Damage to Travelers 253 



ANALYSIS OF CONTENTS. 



Chapter 45. — Removal of Incumbrances upon Highways 
Chapter 46. — Special Provisions Eelating to Highways 



260 
264 



TITLE VI. 

SCHOOLS. 

Chapter 47. — School Money 270 

Chapter 48. — School Districts . 273 

Chapter 49. — Meetings and Officers of School Districts . . .284 

Chapter 50. — School-Houses ........ 294 

Chapter 51. — School Committees and Teachers 300 

Chapter 52. — High Schools 307 

Chapter 53.— Scholars 309 

Chapter 54. — Board of Education • . 312 



TITLE VII. 



PAUPERISM AND PREVENTION. 



Chapter 55. — Masters and Apprentices .... 
Chapter 56. — Guardians of Insane Persons and Spendthrifts 
Chapter 57. — Settlement of Paupers . 
Chapter 58. — County Paupers .... 
Chapter 59. — Eurnishing Relief to Paupers 
Chapter 60. — Poor Earm and Binding out Paupers 
Chapter 61. — Insane Persons and Asylum . 
Chapter 62. — Suits for Supplies to Paupers 
Chapter 63. — Maintenance of Bastard Children . 



315 
320 
330 
337 
342 
344 
347 
349 
355 



TITLE VIII 



REGULATIONS OF POLICE. 



Chapter 64. — Eirewards and Firemen 

Chapter 65. — Village Fire Districts . 

Chapter 66 — Safe-Keeping of Gunpowder 

Chapter 67. — Spiritous Liquors . 

Chapter 68. — Shows and Exhibitions . 

Chapter 69. — Nuisances Injurious to Health 

Chapter 70. — Small Pox and Pestilential Diseases 

Chapter 71. — Disorderly and Vicious Persons and Conduct 

Chapter 72. — Police Officers and Night Watchmen 

Chapter 73.— Sunday and Religious Meetings . 



364 
371 
373 
376 
384 
385 
388 
39 
393 
397 



Yl 



ANALYSIS OF CONTENTS. 



TITLE IX 



CITIES. 



Chapter 74. — General Powers of Cities and Wards 

Chapter 75. — Mayors of Cities 

Chapter 76. — Mayor and Aldermen and Common Council 
Chapter 77. — City Clerk and other City Officers 
Chapter 78. — Powers of City Councils .... 



399 
402 
404 
407 
410 



PRELIMINAEY CHAPTEE. 



CONSTRUCTION OF STATUTES. 



Common usage, s. 2. 

County, meaning of, s. 26. 

Court," officer, or board, s. 29. 

Gender and number, s. 4. 

Grantor and grantee, s. 16. 

Highway and road, s. 25. 

Inhabitant, s. 7. 

Insane person, s. 18. 

" Issue " in descent, s. 20. 

Joint authority, execution of, 
s. 15. 

Justice, as applied to a magis- 
trate, s. 12. 

Land and real estate, s. 21. 

Laws, when to take effect, s.36. 

Month and year, s. 9. 

Mortgageor and mortgagee, s .17 

" Person" includes corporations, 
s. 10. 



Place, s. 28. 

Preceding and following, s. 13. 

Publication, s. 30. 

Repeal of statute, effect of, ss. 
33-35. 

Rules of construction, when in 
force, s. 1. 

Said and such, s. 14. 

Seal includes what, s. 11. 

Selectmen and town clerk, s. 27. 

Spendthrift, s. 19. 

Spiritous and intoxicating li- 
quor, s. 31. 

State and United States, s. 5. 

Supreme court, s. 29. 

Sworn and oath, s. 24. 

Technical words, s. 3. 

Time, computation of, s. 32. 

Town includes what, s. 6. 

Will includes codicil, s. 22. 

Writing and written, s. 23. 



1. Rules for, when to be followed. In the construc- 
tion of all statutes, the following rules shall be observed, un- 
less such construction would be inconsistent with the mani- 
fest intent of the legislature, or repugnant to the context of 
the same statute. — Gen. Sts. p. 40, c. 1, s. 1. 

2. Common usage. Words and phrases shall be con- 
strued according to the common and approved usage of the 
language. — id. s. 2. 

3. Technical words. But technical words and phrases, 
and such others as may have acquired a peculiar and appro- 



See Digest p. 586. 



Z CONSTRUCTION OF STATUTES. 

priate meaning in law, shall be construed and understood 
according to such peculiar and appropriate meaning. — id. 

4. Gender and number. Words importing the singular 
number may extend and be applied to several persons 
or things ; words importing the plural number may in- 
clude the singular ; and words importing the masculine gen- 
der may extend and be applied to females. — id. s. 3. 

5. State. The word " state," when applied to different 
parts of the United States, may extend to and include the 
District of Columbia and the several territories, so called ; 
and the words " United States " shall include said district 
and territories. — id. s. 4. 

6. Town. The word " town " shall extend and be applied 
to any place incorporated, or whose inhabitants are required 
to pay any tax, and shall mean that city, town, or place in 
which the subject matter referred to is situate, or in which 
the persons referred to are resident ; unless from the con- 
text a different intention is manifest. — id. s. 5. 

7. Inhabitant. The word " inhabitant" may mean a 
resident, or person dwelling and having his home in any 
city, town or place. — id. s. 6. 

8. Annual meeting. The words " annual meeting," when 
applied to towns, may mean the annual meeting required by 
law to be holden in the month of March. — id. s. 7. 

9. Month and year. The word " month " shall mean a 
calendar month, and the word " year " a calendar year, 
unless otherwise expressed ; and the word "year" shall be 
equivalent to the expression " year of our Lord." — id. s. 8. 

10. The word " person " may extend and be applied to 
bodies corporate and politic, as well as to individuals. — 
id. s. 9. 

11. Seal. When the seal of a court, public officer or 
corporation is required by law to be affixed to any paper, the 
word " seal " shall include an impression of the official seal 
made upon the paper alone, as well as an impression thereof 
made by means of wax or a wafer affixed thereto. — id. s. 10. 

12. Justice. The word "justice," when applied to a 
magistrate, shall mean a justice of a police court, or a justice 
of the peace for the county in which he resides and for which 
he is appointed. — id. s. 11. 

13. Preceding and following. The words " preced- 
ing " and " following," when used by way of reference to 



CONSTRUCTION OF STATUTES. 6 

any section of these General Statutes, shall mean the section 
next preceding or following that in which such reference is 
made.— id. s. 12. 

14. Said and such. The words " said " and " such," 
when used by way of reference to any person or thing, shall 
apply to the same person or thing last mentioned. — id. s. 13. 

15. Joint authority. Words purporting to give a joint 
authority to three or more public officers shall give such 
authority to a majority of them, unless otherwise expressly 
declared. — id. s. 14. 

16. Grantor and grantee. The word " grantor " may 
include every person by or from whom any estate or inter- 
est in land passes in or by any deed, and the word 
" grantee " may include every person to whom any such 
estate or interest passes in like manner. — id. s. 15. 

17. Mortgageor and mortgagee. The word " mortgage- 
or" or "mortgagee" may include any person claiming 
under such party, or having his right. — Gen. Sts., p. 41, 
c. 1, s. 16. 

18. Insane person. The words " insane " or " insane 
person " shall include every idiot, non compos, lunatic, in- 
sane or distracted person. — id. s. 17. 

19. Spendthrift. The word " spendthrift" shall include 
every one who is liable to be put under guardianship on ac 
count of excessive drinking, gaming, idleness, debauchery, 
or vicious habits of any kind.— id. s. 18. 

20. Issue. The word " issue," as applied to the descent 
of estates, shall include all the lawful lineal descendants of 
the ancestor. — id. s. 17. 

21. Land and real estate. The words " land," " lands," 
or " real estate," shall include lands, tenements and here- 
ditaments, and all rights thereto and interests therein. — id. 
s. 20. 

22. Will. The word " will " shall include codicils. — id. 
s. 21. 

23. Written. The words " written "or " in writing " 
may include printing, or any other mode of representing 
words and letters, except where the written signature of a 
person is required. — id. s. 22. 

24. Sworn and oath. The word" sworn," when applied 
to public officers required by the constitution to take the 
oaths therein prescribed, shall refer to those oaths ; when 



4 CONSTRUCTION OP STATUTES. 

applied to other officers, it shall mean sworn to the faithful 
discharge of the duties of their offices, before a justice of 
the peace, or other person authorized to administer official 
oaths in such cases. 

The word " oath" shall include " affirmation," in all ca- 
ses where by law an affirmation may be substituted for an 
oath ; and in like cases the word " sworn " shall include 
the word " affirmed."— id. ss. 23, 24. 

25. Highway. The word " highway " or " road " shall 
include all bridges thereon. — id. s. 25. 

26. County. The word "county " may mean the county 
in which the subject matter referred to is situate, belongs, 
or is cognizable. — id. s. 26. 

27. Selectmen and town clerk. The word " select- 
men " may mean the selectmen of the town or ward, or the 
mayor and aldermen of the city to which the subject matter 
to be acted upon belongs, or in which it is situate ; and the 
words " town clerk " may mean the clerk of the town, ward 
or city to which the subject matter referred to belongs, or 
in which it is situate. — id. s. 27. 

28. Place. The word " place " may mean city or town, 
unless some other meaning is implied by the context. — id. 
s. 28. 

29. When any court, officer or board is named by 
official title, such designation shall apply to the court, offi- 
cer or board of the county, town or district within and for 
which they are qualified to act in such capacity. — id. s. 29. 

By the words " supreme court " shall be understood the 
supreme judicial court as by law established, unless other- 
wise expressly declared. — -id. s. 32. 

30. Publication. By the words " publish," " published," 
" publishing," or " publication," when notice is required or 
permitted to be given by publication, shall be intended pub- 
lication in a newspaper circulated in the vicinity, and the 
publication shall be for three weeks successively, and the 
last publication one week at least before the day or thing of 
which notice is given, unless otherwise specially provided. — ■ 
id. s. 30. 

31. Spirit. By the words " spirit," " spiritous liquor " 
or "intoxicating liquor" shall be intended all spiritous 
or intoxicating liquor, and all mixed liquor any part of 
which is spiritous or intoxicating, unless otherwise ex- 
pressly declared. — id. s. 31. 



CONSTRUCTION OF STATUTES. D 

32. Time, how computed. When time is to be reck- 
oned from any day, date, act done, or the time of any act 
clone, either by force of law or by virtue of any contract 
made since the twenty-third day of December, 1842, such 
day, date, or the day when such act is done, shall not be in- 
cluded in the computation. — Gen. Sts. p. 42, c. 1, s. 33. 

33. Repeal, effect of. The repeal of any act shall in no 
case affect any act done, or any right accruing, accrued, ac- 
quired or established, or any suit or proceeding had or 
commenced in any civil case before the time when said re- 
peal shall take effect. — id. s. 34. 

34. Prosecutions. No suit or prosecution, pending at 
the time of the repeal of any act, for any offence commit- 
ted, or for the recovery of any penalty or forfeiture incurred 
under the act so repealed, shall in any case be affected by 
such repeal. — id. s. 35. 

35. Repeal, not revive. The repeal of any act shall 
not revive any other act which has been repealed. — id. s. 36. 

36. Laws, when to take effect. Every act passed at 
any session of the general court commencing in June shall 
take effect on the fifteenth day of September next following, 
and every such act passed at a session commencing at any 
other time shall take effect on the fifteenth day of March 
next following, unless a different time be therein limited. — 
id. s. 3T. 



TITLE I. 



TOWNS. 



CHAPTER I.— Powers and Duties of Towns. 

CHAPTER II. — Executions against Towns and School Districts. 

CHAPTER III.— Militia. 

CHAPTER IV.— Riots. 

CHAPTER V.— Proprietary Records. 

CHAPTER VI.— Town Lines. 






CHAPTER I. 



POWEllS AND DUTIES OF TOWXS.* 



Adjourned meeting of town, s. 5 (f). 
Agents, liabilities of towns for, s. 5 (a). 

Liabilities of towns to, s. 5 (a). 
Bonds, for wbat purpose issued, s. 15 (1). 

When not binding upon town, s. 5 (a). 
Bounties to soldi kks, debts for, s. 19. 

Laws for, decisions upon, s. 9 (1). 
Brokerage, s. 19 (1). 
By-LAWS, may be passed by towns, s. 6. 

For horses', cattle and swine, s. 7. 

For preventing fires, s. 8. 

How long in force, s. 9. 

Penalties for violating, ss. 6, 7. 

Selectmen may discbarge, s. 32. 
Cemeteries to be provided by towns, s.20. 

Form of vote and petition, ss. 20 (a), 
21 (a). 

Land for, may be taken, s. 21. 

Removal to new cemeteries, s. 22. 

Soldiers' monuments by towns, s. 23. 
Commons and parks, towns may pro- 
vide, ss. 24. 25. 
Common law, liability of towns, s. 5 (b). 
Contracts by towns, when and bow 
made, ss. 5, 15. 

Acceptance of an offer, s. 5 (f). 



Contracts by towss, 

By agents and officers, s. 5 (a). 

Implied promise, liability for, s. 5 (a). 

Indemnifying officers, s. 5 (d). 

Releasing debt due town, s. 5 (e). 

Without thejscope of powers are void, 
s. 5 (c). 
Corporations, towns are, and proof of 

incorporation, s. 1. 
Distribution of laws, etc., s. 40. 
Division of towns, effect of, s. 36. 
Estopped, towns may be, s. 5 (g). 
Ferries may be provided for, s. 26. 
Finding debts of towns, s. 19. 
Health office«s. liability for, s. 5 (b). 
Highway suryeyor, liability for, s. 5(b). 
Histories of towns authorized, s. 27. 
Indemnity, contracts for by towns, s. 

5(d). 
Injunctions against towns, s. 5 (e). 
Journals of house and senate, dis^ 

tribtition of, s. 40. 
Laws of the state, distribution of, s* 

40. 
Laws of the IT. S., distribution of. s. 40, 



* Most of their powers and duties will be found in separate chapters under appro- 
priate titles. This chapter takes up subjects not separately considered elsewhere. 



TOWNS. 



Real estate, etc., of towns, s. 4. 
Real estate, conveyance of, how made, 

8.4(1). 

Rescinding contracts, s. 5 (f ). 
Reform school, expenses at, s. 33. 

Payment of by town, s. 33. 

Remedy over by town, s. 34. 
Releasing debt by town, s. 5 (e). 
Selectmen, authority and duty of. 

In relation to shade trees, s. 11. 

To contract for town history, s. 27. 

To discharge from jail, s. 32. 

To lay out cemeteries, s. 21. 

To remove dead bodies to, s. 22. 

To represent railroad stock, s. 18. 
Shade trees, authority of town, s. 10. 

Planting and protecting, ss. 12, 13. 

Removal of, by leave of selectmen, s. 11. 
School lots, title to in towns, s. 30 (a). 
Soldiers' monuments, s. 23. ' 
Suits against towns, s. 37. 
Surplus revenue, s. 41. 
Torts and negligence of towns or 

agents, s. 5 (a) (b). 
Town histories, s. 27. 
Town libraries, ss. 28-30. 
Town orders, s. 5 (e). 
Towns are corporations, s. 1. 

What are towns, ss. 2, 35. 
Trustee, when towns may act as such, s. 

30 (a). 
Trustee process against towns, s. 39. 
Unincorporated places, s. 35. 



Libraries, towns may provide, ss. 28-31. 

Master or Servant, s. 5 (b). 

Meeting-houses, sale of and repairs, s. 
3(1), 42, 43. 

Hinist rial lots, title to, vested in, ss. 
30 (a). 

Neglect of public duty, s. 5 (c). 

Notes by towns, s. 5 (e). 

Parks and commons, ss. 24, 25. 

Parishes, when towns, s. 2. 

Penalties for breach of by-laws, ss. 6, 7. 

Petitions to the legislature affect- 
ing towns, s. 38. 

Police officers, liability for, s. 5 (b). 

Prison charges, when towns liable for, 
s. 32. 

Public documents, distribution of, s. 40. 

PCBLIC LIBRARIES, SS. 28-31. 

Pcblic parks and commons, ss. 24, 25. 
Railroad subscriptions, by towns, ss. 

14-20. 
Raising money, general authority, s. 3. 

For ferries in certain cases, s. 26. 

For "necessary charges," s. 3 (1). 

For public cemeteries, ss. 3, 20. 

For public commons and parks, ss. 3, 
24, 25. 

For public libraries, ss. 3, 28. 

For shade trees, s. 13. 

For soldiers enlisting, ss. 3, 19 (1). 

For soldiers' monuments, s. 23. 

For stock in railroads, ss. 14, 15, 16. 

If not authorized by statute, void, s. 
3(1). 

1. Corporate powers. Every town is a body corporate 
and politic, and by its corporate name may sne and be sued, 
prosecute and defend, in any court or elsewhere. — Gen. Sts. 
p. 91, c. 34, s. 1. Evidence of incorporation, see Digest, p. 
606, i. 

2. Towns, what are. All places incorporated by the 
name of parishes with town privileges are towns, and enti- 
tled to the privileges, vested with all the powers and sub- 
ject to all the liabilities of towns. — id. s. 2. 

3. Raising money. Towns may at any legal meeting 
grant and vote such sums of money as they shall judge 
necessary for the support of schools ; for school-houses : for 
the maintenance of the poor ; for laying out and repairing 
highways ; for building and repairing bridges ; for the re- 
pair of meeting-houses (1) owned by the town, so far as to 
render them useful for town purposes ; to aid in the con- 
struction of railroads ; to encourage (2) volunteer enlist- 
ments in case of war or rebellion ; to establish and main- 
tain public libraries, cemeteries and parks or commons, 
and to improve the same ; and for all the necessary charges 
arising within the town. — id. s. 4. 



TOWNS. y 

(1) Towns cannot raise money for distribution— 14 Maine, 375; 11 Allen, 108; Digest, 
p. 595, ss. 2. 3. p. 596, ss. 29-32; nor to repair a meeting-house lor religious and town 
purposes— 8 Greenl. 400; nor to build a bouse to rent— id; nor to build a jail— 10 
Vt. 506; nor to build a court-bouse— 28 R. 354, 359; Digest, p. 607, s. 40; nor to 
repair a bridge in another town— 17 R. 465; Digest p. 607, s 41; 11 Pick. 396; 17 do. 273, 
279 ; nor to purchase uniforms for a military company — 4 Gray 502 ; nor to pay a re- 
ward for tbe apprebension and conviction of one who has committed murder or other 
crime therein— 51 Maine, 174; nor to celebrate the 4th of July— 1 Allen, 103; nor for 
expenses of procuring the act of incorporation— 6 Allen, 152; nor in any case or for any 
purpose unless provided for by some statute either expressly or by necessary or fair im- 
plication. See cases above. 

The words necessary charges apply only to incidental expenses arising in the exercise 
of granted powers— 52 Maine, 595; 51 do., 177; 27 Vt. 71 ; Digest, p. 596, s. 24. 

It has been held in other states under similar statutes that a town may raise money 
for a public clock— 12 Pick. 227; and for a market-house— 23 Pick. 71; 5 Met., 35; and 
for a town-house, and in its erection may make suitable provision by spare rooms for 
the prospective wants of the city or town— 5 Allen, 9; and for the repair of fire-engines 
though owned by individuals, if used in extinguishing fires in the town— 19 Pick, 485; 
21 do., 64; and for the construction of reservoirs for water to supply fire-engines— 3 
Met., 163; and for the purchase of apparatus for extinguishing fires— 27 Vt. 70. 

It is questionable, however, if the courts in this state would go as far as some of 
these decisions.— 28 R. 354, 359, Digest, p. 607, s. 40. 

(2) This could not be done but for this statute.— 13 Mass. 272. 

4. Real estate. Towns may purchase and hold real 
and personal estate for the public uses of the inhabitants, 
and may sell and convey (1) the same. — Gen. Sts. p. 92, c. 
34, s. 3. 

(1) The conveyance must be by deed, executed by an agent duly appointed by a vote 
of the town.— G. S., p. 251, c. 121, ss. 2. 3. 

It is said that such agent may, in this state, execute the deed in his own name.— 
5 R. 458 ; Digest, p. 248, s. 40. 

The vote of a town may give color of title.— Digest, p. 545, s. 45. 

5. Contracts. Towns may make any contracts which 
may be necessary and convenient for the transaction of the 
public business of the town. — id. 

(a) Towns will be bound by the express promise of their agents and officers within 
the scope of of their authority, or a promise niay be implied from the acts of their 
agents within their authority, as in the case of natural persons. — 33 R. 571 ; Digest, p. 
19, s. 22, p. 57, ss. 163, 164, p. 168, s. 13, p. 586, s. 13. 

The contract of a town agent, if under seal, must be executed as the contract of the 
town, or it binds the agent only— 9 Allen, 1; Digest, p. 24, s. 110; nor in such a case 
will the law raise an implied promise by the town.— 9 Allen, 1. 

If a town agent for prosecuting or defending suits is himself an attorney, the town 
will be liable to him for his own professional services as to a third person.— 30 Vt. 285. 

A town may be liable for the services of its agents though employed in the prosecu- 
tion of objects beyond the authority of the town. Thus it has been held liable for the 
services and expenses of a committee appointed by vote to apply to the legislature for 
a law that one term of the court in each year beheld in that town.— 28 R. 354; Digest, p. 
607, s. 40. 

And the right of counsel employed by a town to compensation does not depend upon 
the result of the suit; nor upon the legality or illegality of the action of the town in 
relation to the matter in controversy.— 6 Cush. 389, 392. 

A special town agent, acting under a limited and clearly defined authority, cannot 
bind the town beyond his actual authority.— 8 Allen, 109, 114; 6 do. 187; Digest, p. 22, 
s. 81. 

(b) In relation to the wrongful and negligent acts of the officers of a town or city, 
there is in general no liability on the part of the town or city, unless imposed by 
statute, notwithstanding such acts and omissions may be in the course and within the 
scope of their emplovment— 51 Maine, 359; 36 Vt. 521; 2 Hillard on Torts, c. 26, ss. 14, 
17, pp. 542, 551. 

Thus a town is not liable for the wrongful acts of a highwav surveyor except by 
statute —Digest, p. 410, ss. 317, 318; 10 Met. 108; 51 Maine, 359; nor for an injury from 
the negligence of a laboror employed by him— 1 Allen, 101; nor for the wrongful acts 
of its health or police officers.— 52' Maine, 118; 45 do. 504; 41 do. 363; 1 Allen, 172, 173. 



10 TOWNS. 

In all such cases the officers derive their authority not from the city or town but 
from the statutes, and the relation of master and servant or principal and agent does 
not exist. 

(c) A town will not be bound even by a vote for the performance of contracts or 
duties not within the scope of the objects for which towns exist. — 45 R. 126; 17 R. 465; 
Digest, p. 607, s. 41, p. 608, s. 48; 1 Met. 286; 11 Pick. 396; 13 Mass. 272; 16 do. 48. 

A town is not liable to a private suit for a neglect of corporate duty except by 
statute.— 14 Gray, 541, 543; 9 Mass. 247; 7 do. 187; Digest, p. 11, s. 31; 36 Vt. 521. 

It is said that a city or town as the owner of property for private purposes may be 
liable as an individual; but the decisions upon this point are somewhat conflicting. — 
See 51 Maine. 362; 38 Vt. 350; 11 Grav. 353; 6 do. 544; 5 do. 116; 19 Pick. 511; 21 do. 
344 ; 3. Hill. (N.Y.) 531, 612 ; 2 Smith (N.Y.) 158 ; Hillard on Torts, c. 25, s. 56, p 511-514. 

Towns have power to adjust and compromise suits.— 15 Maine, 460, 463. 

(d) A town may indemnify its officers and agents against suits in the business of the 
town— 12 R. 278; 45 R. 134; 18 Pick. 566; 7 do. 18; 3 Cush. 530; 11 Gray, 340; or an 
inhabitant, in a suit brought for the purpose of settling the town line — 13 Maine, 74; 
but not v'here the duties are imposed specifically by statute on the officer, and the 
town has no duty to perform, no right to defend, and no interest to protect— 45 R. 126, 
134; 41 R. 530; Digest, p. 607, ss. 23, 24. 

And this rule applies especially to the case of selectmen when correcting the check- 
list.— id. 

A town may tal'e an indemnity against the support of a person having a settlement 
therein though not actually a pauper. — 2 Vt. 442; Digest, p. 607, s. 27. 

(e) Town orders may be made payable to order or bearer, but whether a bona fide 
holder will take them with the ordinary rights of the purchaser of negotiable paper is 
not clear. It seems that they will be subject to all defences which might prevail against 
the payee.— 46 Maine, 457; 47 do. 135; 30 do. 452; 20 Vt. 345, 355; 13 Gray, 319. As to 
notes, see Digest, p. 106, ss. 125, 126; as to bonds, see Deboss vs. city of Richmond; 
AmericanLaw Register of August, 1868. 

It has been laid down that a town may release a debt as well as create one. — 3 Greenl. 
334, 344. 

But it is conceived that this right is not an unqualified one. It is well settled that 
an attempt by » town or its officers to appropriate to an illegal purpose money in the 
town treasury may be restrained bv injunction,— 45 R. 126; Digest, p. 133, s. 114; 14 
Maine, 375; 4 Gray, 502; 1 Allen, 105; 10 Cush. 56, 252, 510. 

(f) An offer once accepted by a vote of the town is binding, and the town cannot 
rescind the vote at an adjournment of the same meeting.— 7 R. 255; Digest, p. 168, 
s. 12. 

(g) A town mav be estopped as well as an individual.— 23 Maine, 483; 30 do, 504; 13 
do. 442; Digest, p. 322, s. 41, p. 323, s. 62; 6 Cush. 320; 30 Vt. 504; 16 do. 422. 

6. By-laws. Every town may make rules and by-laws 
for managing and ordering its prudential affairs, and may 
annex penalties thereto not exceeding four dollars for one 
offence, enuring to such uses as it may direct. — id. s. 5. 

7. For horses, neat cattle, etc. Any town may make 
by-laws to prevent horses, mules, asses, neat cattle, sheep 
and swine from going at large in any street, highway or 
common, or in any public place in the town, at any time 
of the year therein provided, on penalty that the owner 
shall forfeit a sum not exceeding four dollars for any breach 
thereof. — id. s. 6. 

8. For preventing fires, etc. Any town may make and 
establish such rules and regulations respecting the kindling, 
guarding and safe-keeping of fires, and for removing all 
combustible materials from any building or place, as the 
safety of the property in such town may require ; and may 
appoint, in such manner as may be prescribed in such reg- 
ulations, all such officers as may be necessary to carry such 



TOWNS. 11 

regulations into effect, and affix penalties not exceeding ten 
dollars for any offence, to be recovered in such manner and 
appropriated to such use as the town may direct. — id. s. 7. 

9. How long in force. By-laws adopted by any town 
without limitation shall continue in force until altered or 
annulled by vote of the town or by law. — id. s. 8. 

10. Shade-trees. Every town shaH have full control of 
the shade-trees situate within the limits of any public street 
or highway in such town, and shall have full power to make 
such regulations, from time to time, as may be deemed 
necessary for the protection and preservation of the 
same. — id. s. 9. 

11. Removal op. If any owner of real estate desire to 
remove any shade-tree or trees situate between the carriage- 
path and sidewalk, or within the limits of any public street, 
he shall first obtain leave of the selectmen, or conform to 
the regulations which the town may have provided relative 
to shade-trees. — id. s. 10. 

12. Planting, etc. Nothing in the two preceding sec- 
tions shall be construed to deprive the owner of real estate 
of the right to plant, rear and protect any tree between the 
carriage-path and sidewalk in any public street or highway 
on which his estate is situate, if it do not interfere with the 
public travel. — id. s. 11. See Digest, p.. 414, ss. 406-408. 

13. By towns. Any town in this state at any regular 
town meeting (an article being inserted in the warrant 
therefor) may make such by-laws and regulations in rela- 
tion to the planting of shade-trees on highways, parks, and 
commons, as may be deemed expedient, and may raise and 
appropriate for that purpose annually a sum of money not 
exceeding forty cents for each ratable poll in said town. — 
Laws of 1868, c. 1, s. 4. 

14. Railroad subscriptions. Any town may, by a two- 
thirds vote, raise by tax or loan such sum of money as they 
shall deem expedient, not exceeding five per cent, of the 
valuation thereof as made by the assessors for the year in 
which said meeting is holden, and appropriate the same to 
aid in the construction of any railroad in this state, in such 
manner as they shall deem proper. — Gen. Sts. p. 93, c. 34, 
s. 10. 

15. Contracts with railroads. Any town may make 
such contracts with any person or any railroad c orporation 



12 TOWNS. 

for the purpose mentioned in the preceding section, as they 
may think necessary, and may raise money by tax or loan 
to carry the same into effect, not exceeding the amount of 
said five per cent. — id. s. 17. 

16. Loans, when to be repaid. Any town raising money 
by loan, under the provisions of the sixteenth or seven- 
teenth sections of this chapter, shall raise in each year, 
commencing the third year after such loan shall be effected, 
a sum not less than three per cent, of the amount of such 
loan, to be applied to the liquidation of the principal of 
such loan, in addition to the interest. — id. s. 18. 

17. Town not liable for debts of corporation. No 
town shall be liable for the debts of any person or railroad 
corporation, beyond the amount appropriated or contracted 
for by such town. — id. s. 19. 

18. Selectmen to represent the stock, etc. Whenever 
any town shall hold stock in any railroad, the selectmen 
are authorized to vote thereon at all meetings of such cor- 
poration, and may appoint an agent for that purpose, by 
writing under their hands. — id. s. 20. 

19. Funding debts. Any town may fund its debt, by 
vote of any legal meeting, and any such indebtedness may 
include the bounty of the general government to volunteers, 
conscripts or substitutes which such town has assumed and 
paid for the purpose of filling its quota (1). And any 
town that may have funded its debt, or any part thereof, 
may at any legal meeting ratify and confirm the same, and 
may issue bonds payable at such time as they may by vote 
authorize, with coupons for interest, payable annually or 
semi-annually, at a rate not exceeding six per cent. — id. s. 21. 

(1) For decisions under the previous statutes authorizing bounties, see Digest, p. 
585; 47 R. 167, 212; 39 Vt. 76, 193, 429, 610. 

A town without a statute for that purpose cannot refund to individuals who have 
paid bounties without authority of the town.— 13 Allen, 92. Brokerage, see 6 Allen, 
187; 32 do. 47. 

The Legislature have power to ratify and confirm acts and contracts by towns giving 
bounties and make them legal.— 33 Conn., 408. 

20. Cemeteries. Every town shall provide one or more 
suitable public cemeteries for the interment of deceased 
persons within its limits, which shall be subject to such reg- 
ulations as the town may establish. — Gen. Sts. p. Ill, c. 
45, s. 1. 

(a) The article in the warrant may be, " To see if the town will provide one or more 
suitable public cemeteries for the interment of deceased persons within its limits and 
establish regulations for the same and appoint agents to carry the votes into effect." 



TOWNS, 13 

The votes may be : Voted, to provide a suitable public cemetery for the interment of 
deceased persons within the limits of the town, and that a committee be appointed to 
carry this vote into effect. Voted, that said committee be instructed to purchase a lot 
for the above purpose, described as follows, [Here insert the description by metes and 
bounds] ; but if the same cannot be obtained at a reasonable price by contract with the 
owner, they are requested to have the same, or so much thereof as in the judgment of 
the selectmen shall be necessary, laid out by the selectmen. 

Voted, that be a committee for the above objects. Voted, that said 

cemetery shall be under the following regulations. [State the regulations.] 

21. Land for, taken. Whenever there is a public 
necessity for the establishment of any new or the enlarge- 
ment of any already established public cemetery, in any 
town, and land necessary therefor cannot be obtained in 
any suitable place at a reasonable price by contract with the 
owner, the mayor and aldermen or the selectmen, upon pe- 
tition therefor, may lay out such quantity of land as in their 
judgment is necessary for establishing or enlarging such 
cemetery, and appraise the damages to the owner ; and all 
proceedings thereupon, and for obtaining increased damages 
in case the owner is dissatisfied, shall be the same as in the 
case of highways laid out by them. — id. s. 2. 

(a) The form of petition may be : 

To the selectmen of the town of — ■ . 

The undersigned respectfully represent that there is a public necessity for the estab- 
lishment of a new public cemetery in said town, in a lot of land described as follows, 
[Here insert as in the vote] which is suitable for the same, and has been designated for 
that purpose by a vote of said town at a meeting duly called, and the undersigned ap- 
pointed a committee to carry said vote into effect ; but the land therefor cannot be ob- 
tained in said lot {or in any suitable place) at a reasonable price by contract with the 
owner; wherefore the undersigned pray said selectmen to lay out said lot, or so much 
thereof as in their judgment is necessary for a public cemetery in said town. 
Dated at * , this day of -, 18—. 



(1) Until so much of the statute shall be repealed it may not be safe to omit the 
words in italics. 

22. Removal op the dead. Whenever any town, by a 
vote of three-fourths of the voters present and voting there- 
on, or any city, by a vote of three-fourths of both branches 
of the city government, shall determine to remove the dead 
bodies buried in any public cemetery to some other suitable 
cemetery, the selectmen or the mayor and aldermen may 
disinter all the dead bodies or remains of persons buried in 
such public cemetery, and reinter the same in some suitable 
cemetery ; but such disinterment and reinterment shall be 
done prudently, and with all proper care and attention, — ■ 
monuments, grave-stones and everything attached to any 
grave being carefully removed and replaced with as little 
injury as the nature of the case will admit,— and at the ex- 
pense of said town or city. — id. s. 3. 



14 TOWNS. 

23. Soldiers' monuments. Any city or town, at any le- 
gal meeting holden for the purpose, may raise and appro- 
priate so much money as they deem necessary, to be expended 
in procuring and erecting a monument to (1) perpetuate 
the memory of such soldiers belonging thereto as may 
have sacrificed their lives in the service of their country, in- 
cluding a suitable lot therefor and fence for its protection. — 
Gen. Sts. p. 94, c. 34, s. 22. 

(1) This could not be done but for an express provision by statute.— -13 Mass. 279. 

24. Commons, etc. Any town or city may raise and ap- 
propriate money to purchase real estate, not exceeding in 
cost one per cent, of the valuation, to be held and improved 
for the purpose of a park or common. — Gen. Sts., p. Ill, c. 
45, s. 4. 

25. Their protection, etc. Any city or town that has a 
park or common may raise and appropriate money to im- 
prove and ornament the same, and may establish regula- 
tions for its protection and preservation, and enforce their 
observance by suitable penalties, not exceeding ten dollars 
for any offence, to be recovered in such manner and appro- 
priated to such use as said city or town may direct. — id. s. 5. 

26. Ferries. When any town situate upon a river shall 
deem it for their interest and the public convenience to es- 
tablish a ferry over said river, they may raise such sum as 
they deem necessary for the establishment and maintenance 
of such ferry; and if such ferry shall be established and 
kept up by a joint-stock company, any town may take stock 
in such company not exceeding twenty-five per centum of 
the whole capital. — Gen. Sts. p. 154, c. 72, s. 4. 

27. Town histories. Any town, at a legal meeting 
called for the purpose, may authorize their selectmen to 
contract with some person to prepare and publish the early 
history of such town, at the expense of the town, under 
such restrictions and regulations as such town shall pre- 
scribe. — Laws of 1868, p. 156, c. 26. 

28. Public libraries. Any town may raise and appro- 
priate money to procure books, maps, charts, periodicals, 
and other publications, for the establishment and perpetual 
maintenance, within its limits, of a public library ; for the 
purchase of such land and the erection of such buildings as 
may be necessary for the suitable accommodation thereof, 



TOWNS. 15 

and for the compensation of such officers or agents as may 
be necessarily employed in the establishment and manage- 
ment of such library.— Gen. Sts. p. 112, c. 46, s. 1. 

29. Use of to be free, etc. Every public library estab- 
lished under the provisions of this chapter shall be open to 
the free use of every inhabitant of the town where the same 
exists, for the general diffusion of intelligence among all 
classes of the community, subject to such rules and regula- 
tions for the well ordering and careful preservation thereof 
as may be established and ordained by such town. — id. s. 2. 

30. Gifts for benefit of. Any town may receive, hold, 
and possess, or sell and dispose of, all such gifts, donations, 
devises, bequests and legacies as may be made to such 
town for the purpose of establishing, increasing or improv- 
ing such public library ; and may apply the proceeds, inter- 
est, rents and profits accruing therefrom in such manner 
as will best promote the prosperity and utility of such li- 
brary. — id. s. 3. 

(a) A town cannot hold property in trust for objects wholly foreign to the purposes 
for which towns are created.— 35 R. 456. 

But if disqualified to hold in any case, the court will api>oint a trustee. — id. 

Towns in this state mav hold funds in trust for the support of religion within their 
limits.— 38 R. 460 ; Digest,* p. 148. s. 17. 

The title of ministerial and school lots under the original charters is held to have 
vested absolutely in the several towns.— 33 R. 524, 531 ; 2 R. 110; Digest, p. 163, s. 132. 

A city or towii may hold property in trust for the benefit of poor persons therein, 
though not paupers.— 5 Allen, 575. 

31. Copy of laws furnished, etc. Every town in which 
a public library is established shall be entitled to receive 
annually a copy of the laws, journals, and all other works 
published by authority of the state, for the use of such 
library ; and the secretary is required to furnish the same, 
from year to year, to such town for that purpose. — id. s. 4. 

32. Prison charges. Any person convicted of any offence 
against the police of towns, or against any by-law of a town, 
may, upon petition and proof of inability to pay any fine or 
costs, be discharged by the selectmen, and the town shall 
be liable for prison charges in case of the prisoner's inabil- 
ity. — Gen. Sts. p. 505, c. 250, s. 11 ; Digest, p. 608, ss. 
49, 50. 

33. Reform school, expenses at. The town from which 
any person is committed to the reform school by order of 
any justice or police court, and the* county from which any 
person may be so committed by order of the supreme court, 
shall pay to the trustees of the reform school the sum by 



16 TOWNS. 

them charged, in addition to his labor or service, for his 
board and instruction, not exceeding one dollar a week, and 
the same may be recovered by said trustees by an action of 
assumpsit.- — Gen. Sts. p. 538, c. 269, s. 23. 

34. Remedy over by town. The town or county so pay- 
ing may recover the same in like manner of the parent or 
guardian of such person, if of sufficient ability, otherwise of 
the town or county by law liable for his support, as if he 
were a pauper. — id. s. 24. 

35. Unincorporated places. All places, not incorpo- 
rated as towns, which shall be required to pay any public 
tax, are invested with the powers of towns relating to the 
choice of moderator and clerk, selectmen, assessors, and 
collectors ; and all the provisions of law applicable to towns 
and town officers are extended to such places and their 
officers, so far as they relate to meetings for the choice of 
such officers, and to their election, powers, duties, and lia- 
bilities, and so far as they relate to public highways, the 
assessment and collection of public taxes, and the peram- 
bulation of the lines of such places. — Gen. Sts. p. 114, c. 48. 

36. Division of towns, effect. When a new town is 
created out of the territory of an old one, the old town, 
without some express provision to the contrary, retains all 
its property and remains subject to all its debts and duties. 
The new town is as a son leaving the old homestead and 
setting up for himself, — portionless, but free from all the con- 
tracts, debts or obligations of the parent. — 47 Maine, 131 ; 
16 Mass. 86 ; 4 do. 384. See Digest, p. 158 (d). 

37. Suits against towns. Service of writs against towns 
may be made upon one of the selectmen and the town clerk 
by copy, twenty-eight days before the sitting of the court. — 
Gen. Sts. p. 413-14, c. 204, ss. 1, 10. See ante, s. 5 (a) 
(b) (c) (d) (e) (f) (g). 

38. Petitions to the legislature, affecting the rights or 
interests of any town, should be served in the same maimer 
as writs, twenty-eight days before the second Tuesday of 
March next preceding the session at which such petition is 
to be presented. — Gen. Sts. p. 42, c. 2, s. 2. 

39. Trustee suits. A town may be summoned as a 
trustee.— Gen. Sts. p. 46.9, c. 230, s. 16 ; 5 U. 13 ; Digest, 
p. 620, s. 43. 

40. Distribution of public documents. The secretary 



TOWNS. 17 

of state is required to distribute annually to each town, and 
to each unincorporated place having ten or more ratable 
polls, one copy of the laws and journals of each session, and 
deliver to each town one copy of the laws of the United 
States which may come into his possession. — Gen. Sts. pp. 
46-7, c. 4, ss. 1, 9, 11. 

41. Surplus revenue. Each town may make such dis- 
position of the public money deposited therewith as it shall 
deem equitable and expedient, but must repay it to the 
state on demand, or an extent will issue. The shares of 
unincorporated places and of towns neglecting to furnish 
the proper security and receive the money are loaned by 
the state treasurer, and the interest paid over annually to 
such towns and places when their state tax is paid. — Gen. 
Sts., p. 53, c. 9 ; see Digest, p. 595. 

42. Meeting-houses. If any meeting-house built by any 
town or corporation has ceased to be occupied as a place 
of public worship, such town or corporation may decide to 
sell the same at auction, and appoint a committee to make 
the sale and execute a conveyance of the house and its 
appurtenances, said committee first publishing notice of the 
time and place of sale ; and the net proceeds of such sale 
shall be equitably divided between the proprietors, owners, 
and pew-holders of such house, according to the value of 
their respective interests therein, to be determined by the 
county commissioners for the county wherein the same is 
situate, on application to them for that purpose by any party 
interested. — Gen. Sts. p. 290, c. 140, s. 5. 

43. Appraisal op pews, etc. If any town shall vote to 
repair for town purposes any meeting-house built by the 
town, it shall cause the pews therein to be appraised by a 
committee of three disinterested persons, and pay to the 
pew-holders the full value of their respective interests, as 
determined by such appraisal, upon demand. Any pew- 
holder dissatisfied with the appraisal of his pew, or such 
town, may appeal to the next trial term of the supreme 
court for the county in which such house is situate, when 
the same proceedings shall be had as in the case of appeals 
from the assessment by selectmen of damages for land 
taken for highways. — Gen. Sts. p. 291, c. 140, s. 15. Right 
to remove, — see Digest, p. 522. 

2 



18 EXECUTIONS AGAINST TOWNS AND D1STEICTS. 



CHAPTER II. 



EXECUTIONS AGAINST TOWNS AND SCHOOL DISTEICTS. 



Levy upon property of prudential coin* 
mittee, s. 8. 

Upon property of school district, s. 1, 8. 

Upon property of selectmen, ss. 7, 8. 

Upon property ot towns, ss. 1, 8. 
Neglect to assess tax, s. 7. 
Notice to debtor, ss. 2, 3. 
Remedy oveb, s. 10. 



Agreement for a discount, s. 4 (a). 
Duty of clerk of district, s. 5. 

Of collector, ss. 6, 9. 

Of prudential committee, s. 5. 

Of school district, s. 5. 

Of selectmen, ss. 4, 7. 

Of sheriff, ss. 2, 3, 7, 8. 
Extent against collector, s. 9. 
Leyy upon property ot inhabitants, s. 8. 

1. Execution may be levied. The goods and estate of 
towns and of school districts maj be taken on execution, 
and set off or sold, subject to the provisions of this chap- 
ter, as in case of an execution against an individual.- — Gen. 
Sts. p. 448, c. 220, s. 1. 

2. Notice to debtor. Any notice required to be given 
to a debtor, upon the sale or set-off of his property on ex- 
ecution, may be given to one of the selectmen of the town 
or prudential committee of the district, upon execution 
against such town or district.— id. s. 2. 

3. Copy to be left with selectmen. If sufficient goods 
or estate of the town or district are not found to satisfy 
the execution, an attested copy thereof may be left with 
one of the selectmen of the town or prudential committee 
of the district.— id. s. 3. 

4. Duty of selectmen. When such copy of an execu- 
tion against a town is so left, the selectmen shall pay the 
same, or assess a tax upon the polls and estate liable to 
taxation therein sufficient to satisfy the same, and the offi- 
cer's fees thereon.— id. s. 4. 

(a) An agreement by the owner of an execution against the inhabitants of a town, 
that if they will at once assess the amount recognized, and collect the same, he would 
make a certain discount^ is founded on sufficient consideration, and will be enforced.— 
20 Maine, 178. 

5. Of prudential committee. When such copy of an 
execution against a school district is so left, the prudential 
committee shall pay the same, or call a meeting of the 
voters of the district, at which meeting they shall vote to 
raise the necessary sum to satisfy said execution and the 
officer's fees thereon ; and the clerk of the district shall 
certify the same to the selectmen, who shall forthwith 
assess a tax for said sum. — id. s. 5. 

6. Tax collected in thirty days, When such town or 



EXECUTIONS AGAINST TOWNS AND DISTRICTS. 



19 



district tax is so assessed, the same shall be collected 
within thirty days, and applied in satisfaction of the execu- 
tion. — id. s. 6. 

7. Neglect to assess tax. If the selectmen to whom 
such vote of the school district is certified neglect for thirty 
days to assess such district tax, and deliver to the collector 
their warrant for the collection thereof, such execution 
against the district may be levied upon the property of said 
selectmen. — id. s. 7. 

8. Levy upon property op selectmen. If such ex- 
ecution is not paid within sixty days after an attested copy 
is left as aforesaid, it may be levied, if against the town, 
upon the goods or estate of the selectmen ; and if against 
the school district, upon the goods or estate of the pruden- 
tial committee ; and if sufficient goods or estate of said se- 
lectmen or prudential committee are not found, it may be 
levied upon the property of any inhabitant of the town or 
district respectively. — id. s. 8. 

9. Extent against collector. If the collector to whom 
any warrant for the collection of such taxes is committed 
neglects to collect and pay over the same to the selectmen, 
within thirty days after receiving the same, the selectmen may 
issue an extent against him. — Gen. Sts. p. 449, c. 220, s. 9. 

10. Remedy over. Every person upon whose property 
an execution against any town or school district has been 
levied may, in an action of assumpsit for money paid, re- 
cover of such town or school district the sum so levied, and 
damages and double costs. — id. s. 10. 



CHAPTER III. 



MILITIA. 



Active duty, when not subject to, s. 5. 
Certificate, by Quakers, s. 4. 

Of nomination, s. 19. 
Company clerk to file list, s. 20. 
Draft from enrolled men, ss. 6-9. 
Enrollment in April, s. 1. 
Exempts, absolute, s. 3. 

Conditional, s. 4. 
Fraud, penalty for, ss. 9, 10. 
Insurrection, s. 5. 
Invasion, s. 5. 
Musicians, s. 12. 
Peace footing, s. 12. 
Penalty, for false information, s. 9. 

For neglect to draft, s. 11. 



Penalty, for neglect to enroll, s. 10. 

For neglect to make a return, s. 11. 

For not appearing, s. 8. 
Quota of each town. s. 7. 
Quakers, exemption of, s. 4. 
Selectmen, duties of, ss. 1, 7, 8, 10, 13-19. 
Shakers, exemption of, s. 4. 
Substitutes, s. 8. 
Town clerk, duties of, ss. 2,11, 20. 
Volunteer companies, ss. 13-20. 

Choice of officers, ss. 18, 19. 

Meetings to choose, ss. 15, 16. 

Notice for, s. 17. 

Petition and order for company, ss. 13, 
14. 



1. Enrollment of by selectmen. Every able-bodied 



20 MILITIA. 

male citizen resident in the state, of the age of eighteen 
years and under the age of forty-five years, not exempt 
from military duty, shall be enrolled in the town in which 
he resides, unless he is enlisted in a volunteer company. 
The enrollment shall be made annually in April by the se- 
lectmen, and the roll deposited in the office of the town 
clerk.— Gen. Sts. p. 177, c. 86, ss. 1. 2. 

2. The town clerk shall enter the names of all per- 
sons upon said roll in an enrollment book kept by him for 
that purpose, and the clerk shall forward a certified copy 
of the roll to the adjutant-general, on or before the first 
day of May.— Gen. Sts. p. 178, c. 86, s. 2. 

3. Exempts. The following persons, being exempted 
from military duty by the laws of the United States, shall 
not be included in said enrollment: that is to say, the vice- 
president of the United States ■; the officers, judicial and 
executive, of the government of the United States ; mem- 
bers of the houses of congress and their officers ; custom- 
house officers and their clerks ; inspectors of exports ; 
pilots and mariners employed in the sea service of a citi- 
zen or merchant within the United States ; postmasters, 
assistant-postmasters, and their clerks ; post officers, post- 
riders, and stage-drivers in the care and conveyance of the 
mail of the United States ; telegraph operators, and ferry- 
men employed at any ferry on a post-road. 

The following persons are also exempted from military 
duty, and shall not be included in said enrollment : that is 
to say, the members of the executive council ; judges and 
clerks of the supreme court ; judges and registers of pro- 
bate ; registers of deeds ; the attorney-general ; the secre- 
tary, deputy-secretary, and treasurer of the state ; the 
attendants upon the insane, employed in the asylum for the 
insane ; keepers of light-houses ; conductors and engine- 
men of railroad trains, necessarily employed in running the 
same ; members and officers of the legislature while in 
session ; persons who, having held commissions in the 
army or navy of the United States or in the militia of any 
state for five years, have been discharged or superseded ; 
persons who, having a warrant as drum- or fife-major, have 
done duty as such for five years ; persons employed as offi- 
cers or keepers in the state prison ; the superintendent of 
the reform school and his assistants ; officers and keepers 



MILITIA. 21 

of jails and houses of correction ; common drunkards, 
idiots, vagabonds, and persons convicted of any infamous 
crime in this or any other state. — Gen. Sts. p. 178, c. 86, 
ss. 3, 4. 

4. Quakers, Shakers, and members of any society or 
meeting of the people called Friends are also exempted, 
and shall not be included in said enrollment, if, on or before 
the twentieth day of April annually, they produce to the 
selectmen a certificate, signed by two or more of the elders, 
overseers, or principal persons, and clerk, of the society or 
meeting with which they unite for worship, that they 
usually and frequently attend with such society or meeting 
for public worship, are members thereof in regular stand- 
ing, and, in the belief of the persons signing the certifi- 
cate, are conscientiously scrupulous of bearing arms. — id. 
s. 5. 

5. The militia so enrolled shall not be subject to 
active duty, except in case of war, or for the purpose of 
preventing, repelling or suppressing invasion, insurrection 
or riot, or of aiding civil officers in the execution of the 
law. — id. s. 6. 

6. Selectmen to draft, when. When it is necessary 
for said purposes, the commander-in-chief may order into 
actual service as many of the militia as may be required, 
by draft or otherwise, and, if a draft is to be made, shall 
issue his orders to the selectmen to return from their towns 
the number required ; and they shall notify the persons 
enrolled to appear at a time and place of parade appointed 
by them ; and then and there, by draft or voluntary enlist- 
ment, procure the required number, and forthwith return 
their names to the commander-in-chief. — id. s. 7. 

7. Quota op each town. When a draft is made, each 
town shall be required to furnish its quota in proportion to 
the number of its enrolled militia ; and volunteers enlist- 
ing for any town shall be accounted for upon its quota. — 
Gen. Sts. p. 179, c. 86, s. 8. 

8. Penalty for neglect to appear. Every person en- 
rolled who is ordered out, or is drafted, or volunteers, and 
fails to appear at the time and place designated by the 
selectmen for his reporting for duty, or has not then and 
there an able-bodied substitute, or in default thereof does 
not pay to the selectmen, for the use of the state, the sum 



22 MILITIA. 

of seventy-five dollars, shall be dealt with as a soldier 
absent without leave. — id. s. 9. 

9. For false information, etc. Any person giving 
false information, or neglecting or refusing to give true in- 
formation, regarding his name, age or residence, or the 
name, age or residence of another residing in his dwell- 
ing, when applied to therefor by any person authorized to 
make such enrollment, shall forfeit five dollars ; and if the 
person incurring such forfeiture is a minor, his parent or 
guardian shall be liable therefor. — id. s. 12. 

10. For neglect to enroll, etc. Any person required 
to make such enrollment, neglecting to make the same, or 
willfully making any false entry upon said roll, or com- 
mitting any other fraud in making said roll, shall be fined 
not exceeding five hundred dollars, or imprisoned not ex- 
ceeding one year. — id. s. 13. 

11. For neglect to make draft or return. Any town 
clerk or other officer required to forward a copy of the roll 
to the adjutant-general, and any selectman or other officer 
required to make any draft, or return the names of persons 
drafted or enlisted to the commander-in-chief, who neglects 
to make such draft or return, shall forfeit twenty dollars 
for each neglect, to be* recovered by the adjutant-general 
for the use of the state. — id. s. 14. 

12. Peace footing. On a peace footing, each company 
of cavalry, field artillery, infantry and riflemen shall be 
limited to fifty-one officers and men ; each company shall 
have two musicians, to be returned and paid as privates. — 
Gen. Sts. pp. 181, 182, c. 87, ss. 11, 17. 

13. Volunteer companies. Companies of field artillery 
shall be raised, on petition, by order of the commander-in- 
chief, with advice of the council ; and all other companies, 
on petition, by order of the commander-in-chief, or, with 
his consent, by order of the selectmen of the town in which 
a majority of the petitioners reside. — Gen. Sts. p. 180, c. 
87, s. 4. 

14. Petition and order for. When a petition for raising 
such company has been signed by not less than thirty-six 
citizens, the order for raising the company may be issued, 
and the adjutant-general, on application therefor, shall 
furnish the petitioners with an enlistment book. — id. s. 5. 

15. Meeting to choose officers. When an order has 



MILITIA. 23 

been issued for raising a company, and fifty persons or 
more have signed its enlistment book, the petitioners may 
give notice thereof to the commander-in-chief, and he shall 
issue an order for calling a meeting of the persons who 
have enlisted. — Gen. Sts. p. 181, c. 87, s. 7. 

16. Who to call and preside at. If a commissioned 
officer of the volunteer force may conveniently be desig- 
nated to attend and preside at said meeting, the order shall 
be directed to him to call said meeting ; otherwise to the 
selectmen of the town in which a plurality of the persons 
who have so enlisted reside. — id. s. 8. 

17. Notice op meeting. Such commissioned officer or 
selectmen shall cause seasonable notice of the time and 
place of meeting appointed by them to be given to each 
person who has so enlisted, or left at his abode ; and at 
said meeting such officer or one of said selectmen shall 
preside. — id. s. 9. 

18. Choice op officers. At said meeting, the persons 
present who have so enlisted may, by ballot and major 
vote, nominate suitable persons to. be commissioned as cap- 
tain and subaltern officers of the company. — id. s. 10. 

19. Certificate of choice. The person presiding at 
said meeting shall forthwith file in the office of the adju- 
tant-general his certificate of said nominations. — id s. 10. 

20. Company clerk to file list with town clerk. 
Each company clerk shall annually, in March, file with the 
clerk of each town in which any officer or soldier of his 
company is liable to be enrolled a certified list of such offi- 
cers and soldiers ; and a certified copy of such certificate 
from said town clerk's office shall be evidence of the en- 
rollment in said company of the persons named in said 
list.— Gen. Sts. p. 187, c. 90, s. 8. 









24 



RIOTS. 



CHAPTER IV. 



MOTS. 



Aldermen's powers and duties, ss. 2, 3, 

6-9. 
City Marshal's powers and duties, ss. 

2, 3, 6-9. 
Constable's powers and duties, ss. 2, 3, 

6-9. 
Deputy Marshal's powers and duties, 

ss. 2, 3, 6-9. 
Form of order to disperse, s. 2. 

Of order for military, s. 7. 
Mayor's power and duties, ss. 2, 3, 6-9. 
Military called out, s. 7. 
Notice of a mob, s. 11. 
Officers, if killed, s. 9. 



Owner in fault, s. 11. 

Peace Officers' powers and duties, ss. 

2, 3, 6-9. 
Penalty for neglect by citizens, ss. 3-6. 

For neglect of officers, s. 3. 

For aiding rioters, ss. 1, 4. 

For not dispersing, s. 4. 
Police Officers' powers and duties, ss. 

2, 3. 6-9. 
Rioters, responsibility of, ss. 4, 8, 9, 12. 

If killed, s. 8. 
Selectmen's powers and duties, ss. 2, 3, 

6-9. 
Town, liability of, ss. 10-12. 



1. Persons promoting. All persons who shall promote, 
aid or encourage any riot or mob, or take any lead, direc- 
tion or control of such mob, by word or act, or attempt so 
to do, or who shall be armed or disguised therein, shall be 
liable criminally as a principal for any crime or offence 
which may be committed by such mob, or any of them. — 
Gen. Sts. p. 486, c. 239, s. 8. 

2. Proclamation to disperse. When twelve or more 
persons, any of them armed with clubs or dangerous weap- 
ons, or thirty or more, armed or not, are anywhere unlaw- 
fully, riotously, tumultuously assembled, every mayor, 
alderman, selectman, justice, constable, city marshal, police 
officer, sheriff, or deputy sheriff, having authority to act in 
that place, shall go among the persons so assembled, or as 
near to them as they can safely go, and in the name of the 
state command all persons there assembled to separate from 
the mob, and place themselves under the orders of the peace 
officers and in the places directed by them, or depart imme- 
diately and peaceably to their homes. 

The proclamation may be in form as follows : 
In the name of the State of New Hampshire : 

All persons here assembled are commanded to separate 
from the mob, and place themselves under the orders of the 
peace officers and in the places directed by them, -or depart 
immediately and peaceably to their homes. 

3. Penalty, for neglect of selectmen, etc. Any may- 
or, alderman, selectman, justice of any court or of the 
peace, sheriff, deputy sheriff, marshal, deputy marshal, con- 



EIOTS. 25 

stable, or police officer, having notice of any unlawful as- 
sembly, mob, or riot, in any place where he is authorized 
to act, refusing or neglecting to do his duty therein as pre- 
scribed by law, shall be fined not exceeding three hundred 
dollars. 

4. For neglect to disperse. If any person shall con- 
tinue unlawfully, riotously and tumultuously assembled, 
after proclamation made by any peace officer to disperse, 
or shall willfully obstruct such peace officer, known or openly 
declared by himself to be such, in making such procla- 
mation, he shall be fined not exceeding five hundred 
dollars, and imprisoned not exceeding one year. — Gen. Sts. 
p. 486, c. 239, s. 9. 

5. For neglect to aid in dispersing. Any person who 
shall be present at any riot, mob, or unlawful and tumultu- 
ous assembly, and shall not aid in suppressing the same, 
shall be fined not exceeding fifty dollars, or imprisoned 
not exceeding three months. — id. s. 7. 

6. Exertions to suppress. The said officers, and each 
of them, shall exert themselves to suppress such riot, and 
to arrest and secure all persons who have taken any part 
therein, or who shall refuse to obey their orders. They 
may command any person to assist in arresting and secur- 
ing such rioters, and shall forthwith organize and arm, with 
such weapons as can be obtained, such citizens as shall 
place themselves under their order, as the power of the 
county, and resist, repel and suppress such riotous assem- 
bly.— Gen. Sts. p. 485, c. 239, s. 1. 

7. Militia may be called out. The mayor of any city 
and the selectmen of any town are authorized, at the ex- 
pense of said city or town, to call out sufficient military 
force to suppress or prevent any mob or riot that may 
threaten or happen within its limits. — Gen. Sts. p. 93, c. 
34, s. 14. 

Whenever, in the opinion of the governor, judge of any 
court of record, sheriff, mayor, or any three selectmen, 
aldermen, justices, or other officers before named, there 
shall be occasion, they may order any military company to 
appear with their arms, or may organize companies of vol- 
unteers, to assist in suppressing such riot. — Gen. Sts. p. 
486, c. 239, s. 3. 



26 RIOTS. 

It is better that the order be in writing, unless the cir- 
cumstances be such as to preclude it. It may be thus : 

Manchester, March 16, 1869. 
The Manchester War Veterans are ordered to appear 
with their arms, at the City Hall in said Manchester, forth- 
with, to assist in suppressing a riot, and they will act under 
the orders of the civil officers engaged in suppressing such 
riot. 

A. B.j&c. 
To Capt. Commanding. 

8. If rioters killed. If, in the effort made to suppress 
such assembly, and to arrest and secure the persons com- 
posing it, though the number be less than twelve, any such 
person or any other person is killed or wounded, or any 
injury is done to persons or property, said magistrates, offi- 
cers, and persons acting with them, shall be held guiltless 
and justified in law. 

9. If officers killed. If any of said magistrates, offi- 
cers, or persons acting with them in such efforts, are killed 
or wounded, all persons so unlawfully assembled shall be 
liable, civilly and criminally, as prescribed by law. 

10. Towns liable for damages. If persons, unlawfully, 
riotously and tumultuously assembled, shall injure or de- 
stroy any property, real or personal, the town within the 
limits of which such property is situate shall be liable to 
indemnify the owner thereof for the property so injured or 
destroyed, in an action on the case. — Gen. Sts. p. 93, c. 
34, s. 12. 

Note. — This law has been held to be constitutional. 

11. Owner in fault. No person shall be entitled to the 
benefits of the foregoing provision if it shall appear that the 
destruction of his property was caused by his illegal or im- 
proper conduct, nor unless it be made to appear that he, 
upon knowledge had of the intention or attempt to destroy 
his property, or to collect a mob for such purpose, and suf- 
ficient time intervening, gave notice thereof to the mayor, 
selectmen, or a justice of the peace of the town in which 
such property was situate. — id. s. 13. (See 45 R. 214.) 

12. Remedy over. Any town which shall pay any sum 
of money, under the provisions of the twelfth section, 



PROPRIETARY RECORDS. 



27 



(s. 10 ante), may recover the same, in an action on the case, 
against any one, or against two or more jointly, who shall 
have injured or destroyed such property. — Gen. Sts. p. 93, 
c. 34, s. 15. 



CHAPTEE V. 



PROPRIETARY RECORDS. 



4, 5, 7. 



Secretary of state, duties of, ss. 4, 5, 

7, 10. 
Secreting records, 8. 6, 11. 
Town clerk, duties of, ss. 2, 3, 

Fees of town clerk, s. 9. 

In two or more towns, s. 3. 

To demand records, ss. 2, 5. 

To deposit with secretary, s. 

To make copies, ss. 7, 10. 



Copies of records to be furnished, s. 1. 

By proprietors' clerk, s. 1. 

By secretary of state, s. 7. 

By town clerk, s. 7. 

Fees for copies, s. 9. 

Effect of copies as evidence, a. 8. 

Penalty for neglect to furnish, s. 10. 
Penalty "for destroying records, Ac. s. 11. 

For not furnishing copies, s. 10. 

For retaining records, ss. 6, 11. 

1. Clerk to furnish copies. Every proprietors' clerk, 
upon payment or tender of the fees therefor, shall furnish 
to any person applying a true and attested copy of any pro- 
prietary record in his possession. — Gen. Sts. p. 295, c. 142, 
s. 16. 

2. Town clerk, to keep, when. If in any town having 
fifty families or more settled therein there is no clerk of the 
proprietors of the common lands lying in such town resid- 
ing therein, the town clerk thereof shall demand and re- 
ceive the proprietary records of any person having the pos- 
session thereof, and shall keep the same with the records of 
the town, and any person having possession thereof shall 
deliver the same to such town clerk. — id. s. 17. 

3. If of two or more towns. If such proprietary 
records relate to lands lying in more towns than one, they 
shall be deposited in the office of the town clerk of the 
town first incorporated, or in the office of the secretary of 
state. — id. s. 18. 

4. To deposit with secretary. When the propriety of 
any town is dissolved, or when the meeting of the proprie- 
tors of any common and undivided lands shall be dissolved, 
and the clerk thereof shall resign, decease, or become inca- 
pacitated, any person, the town clerk of any town having fifty 
or more families excepted, having in his possession any 
record or document appertaining to such propriety, shall file 



28 PROPRIETARY RECORDS. 

and deposit it with the secretary of state, who may demand 
and receive the same. — id. s. 19. 

5. Secretary to re-deliver. Whenever there are fifty 
families in any such town, and such town votes that the 
town clerk shall keep such records and documents, or when- 
ever such proprietors duly appoint a clerk thereof, the sec- 
retary shall deliver to such town clerk or proprietors' clerk, 
on demand, the records and documents to him belonging, 
taking his receipt therefor. — id. s. 20. 

6. Penalty for retaining. If any person shall willfully 
retain or keep any records or documents appertaining to 
the propriety of any common and undivided lands, contrary 
to the provisions of the four preceding sections, he shall be 
fined one hundred dollars. — id. s. 21. 

7. Copies by secretary or town clerk. While the 
records and documents aforesaid are in possession of the 
secretary of state or of any town clerk, he shall make out, 
certify and deliver copies of any part thereof, when thereto 
required, upon payment or tender of the legal fees there- 
for.— id. s. 22. 

8. Effect as evidence. All copies of such records and 
documents so made and certified shall be as effectual (1) to 
all intents and purposes as copies by other certifying offi- 
cers. — id. s. 23. 

(1) See, Digest, p. 355, ss. 587, 588, p. 356, s. 607, p. 360, ss. 694-700, p. 588, s. 9. 

9. Fees for copies. The fees for copies shall be the 
same as are by law allowed to the clerk of the supreme 
court (1). — id. s. 24. 

(1) G. S. p. 548, s. 8. 

10. Neglect to furnish copies, penalty for. If the 
secretary of state or any town or proprietors' clerk shall not, 
within a reasonable time after the payment or tender of his 
fees therefor, make out, certify and deliver to any person a 
copy of any such record or document in his possession, he 
shall forfeit one hundred dollars to any person who will sue 
therefor, and be liable for all damages sustained by such 
neglect or refusal. — id. s. 25. 

11. Secreting or destroying. If any person shall will- 
fully secrete or destroy any proprietary record or document, 
or shall carry any such record or document out of this state, 
he shall be liable for damages to any person injured thereby, 
and be fined not exceeding one hundred dollars. 



TOWN LINES. 



29 



CHAPTER VI. 



TOWN LINES. 



Adverse possession by towns, s. 7 (b). 
Agreed boundary, s. 7 (a). 
Appearance, who may enter, s. 6 (2). 
Appointment to perambulate, s. 2. 

Furm of appointment, s. 11, s. 2 (a). 
Boundary, upon the Connecticut, s. 1. 

Upon the Merrimack, s. 1 (a). 

Upon the Pemigewasset, s. 1 (a). 

When gradually changed, s. 1 (a). 
Committee, appointment of, s. 6. 

Must follow the line, s. 6 (3). 
Connecticut river, towns upon, s. 1, 

s. 1(a). 
Costs in court, how divided, s. 6 (4). 
Disagreement of selectmen, s. 6. 
Estopped, town may be, s. 7 (c). 

State may be, s. 7 (c). 
" First incorporated," meaning of, 

s.4(1). 
Judgment, effect of, s. 8. 
Jurisdiction of Courts, s. 6 (1). 

Mrs TAKE IN CHARTER, S. 17. 

Notice to selectmen, ss. 4, 5. 
Form of notice, s. 10. 



Notice, who entitled to, s. 6 (2). 
Perambulation of town line, s. 2. 

Appointment and form of, ss. 2, 11. 

Every seven years, s. 2. 

Neglect, penalty for, s. 5. 

Notice and form of, ss. 4, 10. 

Recording and form of, ss. 3. 14. 

Return and forms of, ss. 3, 12, 13. 

Effect of, s. 7, s. 7 (a). 
Petition to court and. form of, ss. 6, 16. 
Recording return, and form of, ss. 3, 14. 
Removing land mark, s. 15. 
Return of perambulation, s. 3. 

Forms of return, ss. 12, 13. 
Selectmen to perambulate, s. 2. 

Disagreement of, s. 6. 

May agree upon line, s. 7 (a). 

May appoint agent, 2. 

Must not alter line, s. 2 (a). 

Penalty for neglect, s. 5. 
Supreme court, when to act, s. 6. 

Judgment of, upon whom binding, 
s. 8. 
Unincorporated places, s. 9. 



1. Connecticut river, towns upon. The northerly and 
southerly lines of towns adjoining the Connecticut river are 
continued and extended across said river to the westerly 
line of the state, and the west line of the state is the west- 
ern boundary of such towns. — Gen. Sts. p. 113, c 47, s. 1. 

(a) Towns upon the Merrimack and Pemigewasset rivers go to the centre of the riv- 
ers, i. e. midwav between the banks, and not to a line dividing the water in equal quan- 
tities.— 23 R. 189; 28 R. 195, 217; Digest, p. 119. s. 20, p. 573. s. 14. And the lines vary 
as the banks advance or recede by gradual change. — 9 Cush. 544. 

2. Perambulation. The lines between the towns in this 
state shall be perambulated, and the marks and bounds re- 
newed, once in every seven years forever, by the selectmen 
of such towns, or by such person as they shall in writing 
appoint for that purpose. — id. s. 2. 

(a) If the appointment takes the form of a reference, but the subsequentproceedings 
conform to the statute, it is a legal perambulation. — 24 R. 406, 415 ; Digest, p. 611, s. 142. 
The selectmen have no authority to alter the line, but thej' are toretiew the marks. — 3 
R. 265, 34 R. 581. 

8. Return of. A return of such perambulation shall be 
made, particularly describing the courses and distances and 
the marks and monuments of such line, which shall be 
signed by the selectmen or persons making the same, and 
recorded in the respective town books. — id. s. 3. 

4. Notice, by whom given. The selectmen of the town 



30 TOWN LINES. 

first (1) incorporated, or, if both were incorporated on the 
same day, of the town which is highest in the proportion of 
public taxes, shall give to the selectmen of the town adjoin- 
ing, notice of the time and place of meeting for such peram- 
bulation, ten days before the day of meeting.— id. s. 4. 

(1) This has been held to refer to the town first established with the limits existing 
at the time of the perambulation.— 28 R. 188, 192 ; Digest, p. 612, s. 149. 

5. Neglect, penalty for. If the selectmen whose duty 
it is to give such notice shall neglect to notify as aforesaid, 
or shall neglect to attend agreeably to such notice ; or if the 
selectmen of any town, after being duly notified, shall neg- 
lect to attend ; or if any selectman shall neglect to cause a 
return of such perambulation to be made and recorded as 
afoiesaid, each selectman so neglecting shall forfeit twenty 
dollars, one half for the use of the town whose selectmen 
have done their duty, and the other half to the use of the 
county. — -id. s. 5. 

6. Disagreement of selectmen. When the selectmen 
of adjoining towns shall disagree in renewing (1) and es- 
tablishing the lines and bounds of such towns, the supreme 
court for the county in which the town first incorporated or 
paying the tax as aforesaid is situate, upon petition and af- 
ter notice (2) to the other towns interested, shall, by them- 
selves or a committee for that purpose, examine said (3) 
disputed lines, and their decision thereon shall be final ; 
and the court may order either or both towns to pay the 
costs (4) as they may think just. — id. s. 6. 

(1) The jurisdiction of the court is not limited to cases in which lines have been pre- 
viously run and marked.— 18 R. 227 ; Digest, p. 612, s. 148. 

(2) No one is entitled to notice of the pendency of the petition, and of the hearing be- 
fore the committee appointed thereon, except the opposing town.— 23 R. 188; Digest, 
p. 612, ss. 150, 151. 

But persons whose interests might be injuriously affected, may be permitted to ap- 
pear and oppose the acceptance of the report on giving security for cost3.— id. 

(3) If it appear from their report that the line established by the committee is not the 
true line between the towns, their report will be rejected.~23 R. 188, 192; Digest, p. 
612. s. 147. 

(4) As a general rule the costs will be equally divided between the towns ; but should 
it appear that the objections to a perambulation by the selectmen of one of the towns 
were frivolous and unfounded, the court would order such town to paj all the costs.— 
25 R. 225; Digest, p. 205, ss. 60, 61. 

7. Effect. A perambulation by the selectmen, or a per- 
son appointed by them, is evidence against all persons of the 
true line, but is not conclusive upon any one ; nor was a de- 
termination of the court of sessions conclusive. — 3 R. 612 ; 
34 R. 581 ; 5 R. 34 ; 37 R, 132 ; Digest, p. 349, s. 462. 



TOWN LINES. 81 

(a) But selectmen have authority in cases of doubt to agree where an existing line 
is and such an agreement will be conclusive upon the subject. — 18 R. 98, 101, 3 R. 265; 
Dut see 16 R. 247, Digest, p. 612, s. 146. 

(b) The line of a town may be established by the exercise of jurisdiction on the one 
side, and acquiescence on the other, for twenty years, so as to conclude the right of the 
towns, but not necessarily the rights of land owners.-~28 R. Ill, Digest, p. 259, ss. 227, 
228. 

(c) By the exercise of jurisdiction for a less period than twenty years, a town may be 
estopped to deny the settlement of paupers depending upon it, if in consequence the 
other town has altered its position.— 2 R. 242, Digest, p. 322, s. 41; 30 Maine, 504; 23 
do. 483; 13 do. 442; 6 Cush. 320; 30 Vt. 504; 16 do. 422. 

If the legislature establish the line of a township, the state will be estopped from 
saying that the township does not extend to such a line.— 5 R. 280. 

The legislature can change the jurisdictional line at pleasure. — id.; 3 R. 532; Digest, 
p. 158 (d). 

8. The judgment of the supreme court upon the report 
of the committee is a judgment in rem and conclusive 
upon all persons as to the jurisdictional line, and it has 
been held conclusive even in a suit between third persons, 
cominenced^?rwr to the proceedings for establishing the line, 
but pending at the time of the rendition of the judgment. — 
34 R. 577 ; Digest, p. 443, ss. 75, 76 ; but see 28 E. 116. 

9. Unincorporated places are required to perambulate 
lines the same as towns. ■ — G-. S. p. 114, c. 48 ; ante p. 16, s. 35. 

10. The form of notice under s. 4, ante, may be : 
To the Selectmen of the town of : 

The undersigned, selectmen of the town of— — , hereby 

notify you to meet them at — , in the town of , 

on the day of — — - next, at — — o'clock in the 

—noon, for the purpose of perambulating the line between 
said towns, and renewing the marks and bounds thereof as 
required by law. 

Dated at — — — -, this — - day of — - — 18—. 

_____ _ ) Selectmen 

~~ ~ \ of 



11. The appointment of an agent may be thus : 

7b — ~ of the tozvn of : 

The undersigned, selectmen of the towns of — — and 
respectively, hereby appoint you to perambulate the line 



between said towns and renew the marks and bounds there- 
of and make return of such perambulation according to law. 

Given under our hands this — - day of , 18—. 

_____ ) Selectmen 

of 

Selectmen 
of 



32 TOWN LINES. 



12. The return of a perambulation may be as follows : 

PERAMBULATION. 

Pursuant to a notice by the selectmen of the town of 
to the selectmen of the town of — — — , the under- 



signed met at in the town of , on the 

day of last, at o'clock in the noon, the time 

and place specified in said notice, and proceeded to peram- 
bulate the line between said towns and renew the marks 
and bounds thereof, and established the same as follows : — 

Beginning at a tree at the corner of said 

and marked [Describe] which is established as the corner 
bound between said towns ; thence [Here insert the courses 
and distances and monuments, describing them and the 
marks upon them particularly ; stone or other permanent 
monuments having been put up when necessary.] 

In witness whereof we have hereunto set our hands this 

day of ,18—. 

) Selectmen 

' " S of 



Selectmen 
of 



13. The form of a return by persons appointed may be : 

PERAMBULATION. 

Pursuant to an appointment by the selectmen of the 

towns of and — , the undersigned, on the 

day of last, perambulated the line between said towns 

and renewed the marks and bounds thereof, and established 
the same as follows : Beginning, &c. (as in s. 12 ante.) 

Witness our hands this day of , 18 — . 



14. The return should be recorded by each town clerk 
and the record attested at the bottom : 

Received 18 — and recorded. 

A true record. Attest : , Town Clerk. 

15. Removing land marks. If any person shall willfully 
and maliciously remove or alter any boundary of lands, or 
deface, alter or remove any mark upon any tree or other 



TOWN LINES. 33 

monument made for the purpose of designating any point, 
course or line in the boundary of any lot or tract of land, 
or dividing \me between towns, such person shall be fined 
not exceeding twenty dollars, or imprisonment not exceed- 
ing six months, or both. — Gen. Sts. p. 526, c. 263, s. 1. 
16. A petition to the court under s. 6, ante, may be : 

H , SS. To the Supreme Judicial Court : 

The undersigned, selectmen of the town of , res- 
pectfully represent that on the day of last, they 

met the selectmen of the town of , pursuant to notice 

previously given, for the purpose of perambulating the line 
between said towns and renewing the marks and bounds 
thereof, but the said parties disagreed and still disagree in 
renewing and establishing such line and bounds ; where- 
fore the undersigned request said court by themselves or a 
committee for that purpose, to examine said disputed line 
and establish the same and renew the marks and bounds 
thereof. 

) Selectmen 

\ of 



It is presumed that the petition may be in the name of 
the town. — 18 R. 98. But it has been usually in the name 
of the selectmen.— 18 R. 22T ; 23 R. 188. 

17. A mistake in the charter of a township can not be 
corrected in a suit between individuals. — -5 R. 280. And 
it seems that the court has no jurisdiction to correct it. — id. 



TITLE II 



TOWN MEETINGS. 



CHAPTER 


VII. 


CHAPTER 


VIII, 


CHAPTER 


IX, 


CHAPTER 


X.- 


CHAPTER 


XI, 


CHAPTER 


XII.- 


CHAPTER 


XIII.- 


CHAPTER 


XIV.- 


CHAPTER 


XV.- 



— Warning Town Meetings. 

— Regulating and Posting Check-List. 

— Rights and Qualifications of Voters. 

—Conduct and Government of Town Meetings. 

—Record of Town Meetings. 

—State and County Officers. 

—Contested Elections. 

—Representatives in Congress. 

—Electors of President and Vice-President. 



CHAPTER VII. 



WARNING TOWN MEETINGS. 



Annual meeting, ss. 1, 3, 6, 14, 15, 18, 20, 

21. 
Certificate of posting necessary, s. 11. 

Amendment of, s. 11 ( b). 

Forms of, s. 14 (d), s. 16. 

Must state day and place, s. 11 (a). 
Constable, duties of, ss. 6, 9, 11. 
Death or removal of selectmen, s. 4. 
Forms— 

Applications to justice, ss. 19-22. 

Applications to selectmen, ss. 17, 18. 

Certificate of posting, s. 14 (d), s. 16. 

Warrants by selectmen, ss. 14, 15, 17(d). 

Warrants by justice, ss. 23-26. 
Justice, to call meetings, ss. 5, 6, 22, 23 
(b), 25, 26. 



"Public place," s. 10 (c). 
Selectmen, duties of, ss. 2, 3, 4, 8, 9, 10, 11. 

Liable for false return s. 11 (c). 

Penalty for neglect of duty, s. 13. 
Special meetings, ss. 2, 3, 17-26. 
Special mode of warning, s. 12. 
Ten voters may apply, ss. 3, 6. 

Applications, forms of, ss. 17, 18, 21, 

23-26. 
Warrant, requisites of, ss. 7, 8, 9. 

Articles in, ss. 3, 8.- 

How directed, s. 9. 

How and wlien posted, s. 10, 10 (a), 
(b),(c). 

Return of, ss. 11, 16. 



1. The annual meeting of every town shall be holden on 
the second Tuesday or other day in March, annually, for 
the choice of town officers and the transaction of all other 
business. — Gen. Sts. p. 94, c. 35, s. 1. 



WARNING TOWN MEETINGS. 35 

The meetings in the several towns, for the election of 
governor, councillors, and senators, shall be holden on the 
second Tuesday of March, annually, and at no other 
time. — Gen. Sts. p. 83, c. 29, s. 1. 

2. Special meetings. A town meeting may be warned 
by the selectmen, when in their opinion there shall be oc- 
casion therefor. — Gen. Sts. p. 94, c. 35, s. 1. 

3. Upon application. The selectmen, upon the written 
application of ten or more voters, or one sixth of the voters 
in town, shall insert in their warrant, for the annual or any 
other meeting, any subject specified in such application, or 
shall warn a meeting therefor, if requested in such applica- 
tion. — id. s. 3. For forms, see ss. 17, 18, post. 

4. In case op the death or removal of any of the se- 
lectmen of a town, the major part of those who remain in 
office shall have power to warn meetings. — Gen. Sts. p. 
95, c. 35, s. 8. 

5. Justice to call. If the selectmen unreasonably neg- 
lect or refuse to warn a meeting, or to insert any article in 
their warrant, a justice of the peace, upon application in 
writing of one sixth part of the voters of such town, may 
issue a warrant for such meeting. — id. s. 9. For forms, see 
ss. 19, 20, post. 

6. If the annual meeting in any town shall not have been 
holden, or if there has never been any legal meeting of the 
town, a justice of the peace, on application of ten voters, or 
of one sixth part of the voters of the town, may issue a 
warrant for such meeting, under his hand and seal, directed 
to a constable of the town, if any there be, otherwise to one 
of the voters applying, specifying the time, place and ob- 
ject of such meeting, and served and returned in the same 
manner as warrants issued by selectmen. — id. ss. 10, 11. 
For forms, see ss. 21, 22, post. 

7. Warrant, requisites of. The warrant for any town 
meeting shall be under the hands and seal of the selectmen, 
and shall prescribe the place, day and hour of the meet- 
ing. — Gen. Sts. p. 94, c. 35, s. 2 ; see ss. 4, 5, 6, ante. 
Form of warrant, s. 14, post. 

8. Articles in. The subject matter of all business to be 
there acted upon shall be distinctly stated in the warrant, 
and nothing done at any meeting shall be valid unless the 
subject thereof is so stated. — id; Digest, p. 608, ss. 57-63. 



36 WARNING TOWN MEETINGS. 

9. To whom directed. The selectmen may address 
their warrant to the inhabitants of the town qualified to 
vote in town affairs, or to a constable of the town, requiring 
him to notify the inhabitants. — id. ss. 4, 5. 

10. Posting. An attested copy of the warrant must be 
posted by the selectmen, constable, or other person duly 
authorized to serve the same, at the place of meeting, and a 
like copy at one other public place in the town, fourteen days 
before the day of meeting. — Gen. Sts. p. 94, c. 35, ss. 4, 5. 
Both days are excluded, and therefore a posting as early as 
Monday, two weeks before the Tuesday on which the meet- 
ing is to be holden, is indispensable. — Digest, p. 608, 6Q. 

(a) A posting of the original warrant instead of a copy may be sufficient— Digest, p. 
608, s. 65 ; but should be avoided. 

(b) If the copy be inaccessible to tbe public, as when it is posted upon the inside of 
the door ofthe place of meeting and the door kept locked, tbe notice is insufficient. — 
21 E. 562; Digest, p. 608, s. 64. 

(c) Public place. The words " public place " mean such places as, in comparison 
with others in the same town, are those where the inhabitants and others most 
frequently meet or resort. — 40 E. 173; Digest, p. 366, s. 54. 

A meeting-house is prima facie a public place, and a return of a posting upon a meet- 
ing-house need not describe it as a public place; but if of little or no public resort in 
comparison with other places in the city or town, it is not to be deemed a "public 
place."— 40 E. 188. A shoemaker's shop in Deerfield, was held not to be a " public 
place."— 3 E. 178 ; 40 E. 187. 

In new and thinly settled towns and places, there may be neither post-office, church, 
tavern or store ; and the school-house, mill or mechanic's shop may be properly re- 
garded as the most public place. And the same remark may, under proper circum- 
stances, apply to the bridge, or the guide-board, or the box by the road-side where 
newspapers are left for subscribers, and to posts and boards erected by public authority 
for posting notices, where the evidence shows that no more public places can be found. 
Bell, C. J., 40 E. 188. 

11. Certificate of posting. The selectmen or the con- 
stable serving any warrant shall return the same, at the 
time and place of meeting, with a certificate of the service 
thereof, to the town clerk, or, in his absence, to one of the 
selectmen. — Gen. Sts. p. 94, c. 35, s. 7. 

(a) The return must state the flay and place of posting.— Digest, p. 608, ss. 68-70. 
And, as it is ordinarily the only evidence of posting that will be received, it is very im- 
portant that it be correct. 

(b) Courts, upon an application and proof that the facts will warrant it, will allow 
an amendment of the certificate, by the selectmen who were in office at the time. — 
Digest, p. 38, ss. 147, 157. 

(c) Selectmen will be liable for a false return to any person injured thereby. — 
6 E. 189. 

12. Any town may by vote prescribe a different 
method of warning meetings ; and the meetings warned in 
pursuance of such vote shall be legal and valid. — id. s. 6. 

13. Penalty for neglect. Selectmen are subject to a 
penalty of $50 for neglect to warn meetings in the cases 
prescribed by law. — Gen. Sts. p. 95, c. 35, s. 12. 



warning town meetings. 37 

14. Warrant for town meeting. 

(a) The State of New Hampshire. 

[L. S.] To the Inhabitants of the toivn of qualified to 

vote in town affairs : 

You are hereby notified to meet at , in said town, 

on the second Tuesday of March next, at of the clock 

in the forenoon, to act upon the following subjects : — 

1. To choose a moderator to preside in said meeting. 

2. To bring in your votes for governor, railroad com- 
missioner, councillor, senator, register of deeds, county 
treasurer, and county commissioner. 

3. To bring in your votes for representative in congress, 
in district number — (1). 

4. To choose one or more representatives to represent 
said town in the general court, to be held at Concord on 
the first Wednesday of June next. 

5. To choose all necessary town officers and agents for 
the year ensuing. 

6. To raise such sums of money as may be necessary for 
the support of schools ; for the maintenance of the poor ; 
for laying out and repairing highways, and building and 
repairing bridges ; and for other necessary charges arising 
within the town. 

7. To see if the town will vote to discontinue the high- 
way leading from to . 

8. To hear the reports of agents, auditors, committees, 
or officers heretofore chosen, and pass any vote relating 
thereto (2). 

9. To see if, &c, &c. 

(b) Given under under our hands and seal, this day 

of February, A. D. 18—. 

) Selectmen 

I of 



(c) A true copy of warrant. 

Attest: j Sele ^ m en 



(d) Certificate of posting by selectmen. 

, March , 18 — . We hereby certify that on 

the day of February last, we posted an attested copy 



38 WARNING TOWN MEETINGS. 

of the within warrant at the place of meeting within speci- 
fied, and a like copy at , a public place in said town. 

) Selectmen 

I of 



(1) Insert the number except when the article is omitted. 

(2) See 11 Gray, 310; 11 Cush. 244; 7 Met. 218; Digest, p. 577, s. 6. 

15. Warrant for town meeting when directed by the 
selectmen to a constable. 

The State op New Hampshire. 

[L. S.] To one of the Constables of the town of : 

You are hereby required to notify and warn the inhabi- 
tants of said town, qualified to vote in town affairs, to meet 

at , in said town, on the second Tuesday of March 

next, at ten of the clock in the forenoon, to act upon the fol- 
lowing subjects : 

[Insert articles as in s. 14, anteJ] 

Hereof fail not, and make due return of this warrant, with 
your doings thereon, to the town clerk, or in his absence to 
one of the selectmen, at the time and place of said meeting. 
* Given, &c, — as ante s. 14 (b). 
A true copy of the warrant. 

Attest : , Constable of . 

16. Certificate op posting by a constable. 
-, March — , 18 — . I hereby certify that on the 



day of , 18 — , I posted an attested copy of the within 

warrant at the place of meeting within specified, and a like 

copy at , a public place in said town. 

, Constable of . 

17. Application to selectmen to call a town meeting. 

(a) To the Selectmen of the town of : 

The undersigned, legal voters of said town, [or," being one 
sixth part of the legal voters of said town,"] (1) request you 

to call a meeting of said town (b) to be holden at in 

said town, on the day of September next, at — o'clock 

in the forenoon, to act upon the following subjects : [Here 
insert the articles.] 

(c) Dated at said — , this — — day of , 18 — . 

A B, 
C D, etc. 



WARNING TOWN MEETINGS. 39 

(d) If the application is granted the warrant may be in 
common form, since the selectmen may call a town meeting 
when in their opinion there is occasion therefor. Or the 
selectmen, if they choose, can state in the warrant, " Pursuant 
to an application to us of this date by ten or more voters of 
said town you are notified to appear," etc., in which case it 
is proper and may be necessary that the application as well 
as the warrant be recorded. See s. 23, post. 

(1) When the application to the selectmen is signed by ten voters, the words, 
"being one sixth part of the voters in said town," should be omitted in the applica- 
tions and in the warrants. 

18. Application to selectmen to insert articles. 
To the Selectmen of the town of ; 

The undersigned, legal voters of said town, [or, " being 
one sixth part of the legal voters in said town,"] request 
you to insert in the warrant for the next meeting of the in- 
habitants of said town the following articles : [Here insert 
the articles.] 

Dated at said , this day of , 18 — . 

[Names of signers.] 

19. Application to a justice upon refusal of select- 
men TO CALL A TOWN MEETING. 

To , a Justice of the Peace in and for the county of : 



The undersigned, being one sixth part of the legal voters 

of the town of , in said county, respectfully represent 

that on the day of last, ten or more legal 

voters of said town made a written application to the select- 
men thereof, to warn a meeting of said town, a copy of 
which application is as follows : [Here insert a copy of the 
application including the names of the signers thereto.] 
Yet the said selectmen have unreasonably neglected and 
refused to warn a meeting as requested in said application ; 
wherefore the undersigned request you to issue a warrant 
for such meeting to act upon the articles contained in said 
application. 

Dated at said , this day of , 18 — . 

* [Names.] 

20. Application to a justice upon refusal (1) of 
selectmen to insert articles. 

To , Justice of the Peace for the county of — — : 



The undersigned, being one sixth part of the legal voters 



40 . WARNING TOWN MEETINGS. 

of the town of , in said county, respectfully represent 

that on the day of last, ten or more voters of 

said town [or, " one sixth part of the legal voters of said 
town "] (2) made a written application to the selectmen 
thereof to insert articles in the warrant for the then next 
meeting of the inhabitants of said town, a copy of which 
application is as follows : [Here insert a copy including 
the names of the signers.] 

Yet although said selectmen have, since said application, 
issued a warrant under their hands and seal for a meeting 
of the inhabitants of said town, and copies of which war- 
rant have been posted as provided by law, yet they have 
unreasonably neglected and refused to insert in said war- 
rant* the articles above mentioned. 

Wherefore the undersigned request you to issue a war- 
rant for a meeting of the inhabitants of said town to act 
upon said articles. 

Dated at said , this day of , 18 — . 

AB, 

C D, etc. 

If a portion of the articles have been inserted and others 
omitted, proceed as above to*, and then say — " the following 
articles above mentioned, namely: [Here insert the omit- 
ted articles.] Wherefore the undersigned request you to issue 
a warrant for a meeting of the inhabitants of said town to 
act upon said omitted articles," etc. 

(1) s. 18, ante. 

(2) See ante, s. 17. 

21. Application to a justice upon the failure of the 
annual meeting. 

To , a Justice of the Peace for the county of : 



The undersigned, legal voters of the town of , 

in said county, [or, " one-sixth part of the legal voters of 
the town of , in said county,"] respectfully repre- 
sent that the annual meeting in said town for the year 
18 — has not been holden ; and they therefore request you 
to issue a warrant for a meeting of the inhabitants of said 
town to act upon the following subjects : 



WARNING TOWN MEETINGS. 41 

1. To choose a moderator to preside in said meeting. 
[Here insert other articles, for which see s. 14, ante.'] 

Dated at said , this — — day of 18 — . 

AB, 
C D, &c. 

22. Application to a justice when there has been no 
legal meeting. 

To , a Justice of the Peace for the county of — : 



The undersigned, legal voters of the town of , in 

said county, [or, " one-sixth part of the legal voters of the 

town of -, "] respectfully represent that there has 

never been a legal meeting of the said town, and they there- 
fore request you to issue a warrant for a meeting of the 
inhabitants of said town to act upon the following subjects : 

1. To choose a moderator to preside in said meeting. 
[Here insert other articles for which, see s. 14, ante.] 

Dated at said •, this day of , 18 — . 

AB, 
C D, &c. 

23. Warrant by justice upon the neglect of select- 
men TO CALL A SPECIAL MEETING. 

(a) The State of New Hampshire. 

[L. S.] To , one of the Constables (1) of the town of 

, in the county of — — — : 

(b) Pursuant to an application (2) in writing, of this 
date, to me a justice of the peace for said county, by one- 
sixth of the legal voters of said town, by reason of the 
unreasonable neglect and refusal of the selectmen thereof to 
warn a meeting of said town, — you are required to notify 
the inhabitants of said town, qualified to vote in town 
affairs, to meet at, &c. [Here state time and place, and 
objects of the meeting, precisely as in the application to the 
selectmen.] 

(c) Hereof fail not ; and make due return of this war- 
rant, with your doings thereon, to the town clerk, or, in his 
absence, to one of the selectmen of said town, at the afore- 
said time and place of meeting. 

Given under my hand and seal at , in said county, 

this day of , 18—. 

■ — , Justice of the Peace. 






42 WARNING TOWN MEETINGS. 

The constable will attest the copy as follows : 
A true copy of warrant. 

Attest : -, Constable of . 

Certificate of notice as in s. 16, ante. 
The application to the justice, as well as the warrant, 
should be recorded. 

(1) If there is no constable in the town, the direction may be " To , a voter of 

the town of , and one of the signers to the application upon which this warrant 

is issued," and the warrant be served and the copy attested by him. 

(2) s. 19, ante. 

24. Warrant rt a justice upon the refusal of select- 
men TO INSERT ARTICLES. 

The State of New Hampshire. 



[L. S.] To , one of the Constables of the town of— — ? 

in the county of : 

Pursuant to an application (1) in writing, of this date, to 
me a justice of the peace of said county, by one-sixth of the 
legal voters of said town, by reason of the unreasonable 
neglect and refusal of the selectmen of said town to insert 
articles in their warrant for a town meeting, — you are 
hereby required to notify and warn the inhabitants of said 

town, qualified to vote in town affairs, to meet at , 

in the said town, on the — day of next, at — 

o'clock in the noon, to act upon the following subjects: 

[Here insert the omitted articles.] 

Hereof fail not, etc. (as in s. 23, ante}. 

(1). s. 20, ante. 

25. Warrant by justice upon the failure of the an- 
nual MEETING. 

The State of New Hampshire. 



[L. S.] To , one of the Constables of the town of- , 

in the county of ; 

Pursuant to an application (1) in writing, of this date, 
to me a justice of the peace for said county, by ten legal 
voters of said town, [or, " one-sixth part of the voters of 
said town,"] by reason of the failure of their annual meet- 
ing, — you are required, etc. (as in s. 23, ante). 

(I) S. 21, ante. 



REGULATING AND POSTING CHECK-LIST. 



43 



26. Warrant by justice when there has never been a 
legal meeting. 



[L. S.] To- 



The State op New Hampshire. 

, one of the Constables of the town of 



in the county of : 

Pursuant to an application (1) of this date, to me a jus- 
tice of the peace for said county, by ten voters of said town, 
[or, " by one-sixth part of the voters of said town,"] by 
reason of there never having been any legal meeting of the 
said town, — you are required (as in s. 23, ante). 



CHAPTER VIII 



REGULATING AND POSTING CHECK-LIST. 



Certificate of posting, s. 15. 
Classed towns, s. 12. 
Correcting list, ss. 2, 4. 
Destruction of list, s. 10. 
False answers, s. 5. 
Forms, ss. 14, 15. 
Misconduct of selectmen, s. 6. 
Meetings to correct list, s. 2. 
New list to be made, s. 14 (1). 



Notice of meetings to correct, s. 3. 
Notice to voter, s. 4 (2). 
Open to examination, s. 7. 
Penalties for fraud, ss. 5. 6. 
Posting lists, ss. 1, 14, 15. 
Ratable polls not upon list, s. 11. 
Voters not upon list excluded, etc. 

s. 9. 
When no list is necessary, s. 13. 



1. Posting, etc. The selectmen shall lodge with the 
town clerk, and cause to be posted in one or more public 
places (1) in town, an alphabetical list of all the legal 
voters therein, fourteen days at least prior to any meeting 
for the choice of state or county officers, representatives in 
congress, or electors of president and vice-president. — Gen. 
Sts. p. 81, c. 28, s. 1. 

(a) A town representative in the legislature is state officer, and if the check-list be 
not used the balloting will be void —2 R. 246; Digest, p. 498, s. 4, p. 609, s. 75; and the 
town clerk must certify in the certificate of election that the check-list was duly posted 
and used during the balloting.— Gen. Sts. p. 87. c. 32, s. 2. 

(1) '' Public places," what are. See ante, p. 36, s. 10 (c). For certificate of posting, 
see s. 15, post. 

2. Meetings to correct. The selectmen shall be in ses- 
sion at some convenient place, for so long a time as shall be 
necessary, within three days next preceding any such 
meeting, for the purpose of correcting said list. In all 
towns where there are more than six hundred legal voters, 
the first meeting shall be six days before the day of elec- 



44 REGULATING AND POSTING CHECK-LIST. 

tion, and the sessions shall be adjourned from day to day 
until the claims of all applicants shall be heard and decided ; 
and one session shall be for two hours at least on the day 
and before the opening of said meeting. — Gen. Sts. p. 81, 
c. 28, s. 2. 

3. Notice of the times and places of holding said sessions 
shall be given upon said list at the time of posting the 
same.— Gen. Sts. p. 82, c. 28, s. 2. 

4. How corrected. The selectmen shall hear all appli- 
cations for the insertion of the name of any person upon 
said list, or the erasure of any name therefrom, and may 
examine the party or any witnesses thereto upon oath, 
which may be administered by any member of the board. 
They shall insert the name of every legal voter omitted, 
and erase the name of every person not a legal voter (1) ; 
and when any name has been placed on said list it shall not 
be stricken therefrom except in open session (2). — Gen. 
Sts. p. 82, c. 28, s. 3. 

(1) They are bound to do this although no application for that purpose may have 
been made to them. 

02) The person interested should ordinarily have notice to show cause before his 
name is struck off. 

5. False answers. If any person, being under exam- 
ination as to his qualifications as a voter before the 
board of selectmen, shall give any false name or answer, he 
shall be fined* not more than thirty dollars for each offence, 
or be imprisoned not more than three months. — Gen. Sts. 
p. 89, c. 33, s. 9. And if under oath it is perjury.* — Gen. 
Sts. p. 520, c. 259, s. 1. 

6. Misconduct of selectmen. If any selectman, at any 
session holden for the correction of the list of voters, on 
receiving satisfactory evidence that any person whose name 
is on said list is not a legal voter, shall neglect or refuse to 
erase such name from the list, or shall neglect or refuse to 
insert on said list the name of any person who is a legal 
voter, having satisfactory evidence thereof, or shall neglect 
or refuse to hear or examine any evidence offered for such 
purpose in either of the cases aforesaid, or shall at any time 
insert on said list the name of any person not a legal voter, 
knowing such to be the case, or shall knowingly erase there- 
from or omit to insert the name of any legal voter, he shall 

* Not if it was an innocent mistake. 



REGULATING AND POSTING CHECK-LIST. 45 

be fined not more than fifty dollars for each offence. — 
Gen. Sts. p. 90, c. 33, s. 11. 

7. List to be open to examination. The list as correct- 
ed by the selectmen shall at all times, before the opening 
of any meeting, be open for the examination of every 
citizen. — Gen. Sts. p. 82, c. 28, s. 4. 

8. The selectmen shall be present at the opening of 
the meeting, and have with them the list of legal voters as 
corrected. — id. s. 6. 

9. NO PERSON SHALL VOTE AT ANY MEETING UNLESS HIS 

name is inserted upon said list before the opening of the 
meeting, and the vote of no person whose name is then 
upon said list shall be rejected ; but this section shall not 
prevent any person from voting at any election whose resi- 
dence has, with the knowledge of the selectmen, been, 
during the entire year next preceding said election, in such 
town, whose name has been omitted from said list. — id. s. 5. 

10. The destruction or taking away of the check-list, 
when in use at any annual or other election, subjects to a fine, 
or imprisonment. — Gen. Sts, p. 90, c. 33, s. 12. 

11. Ratable polls not upon list. Upon the back of the 
list of voters used at the annual meeting, the selectmen 
shall enter the names of all ratable polls in town not in- 
cluded in said list, and shall file the same with the town 
clerk within one week after the town meeting. — Gen. Sts. 
p. 83, c. 28, s. 18. 

12. In classed towns the posting, fourteen days before, 
must be by the selectmen of the town in which the meeting- 
is to be held, who at said town meeting must enter on the 
list the name of every legal voter which shall be upon the 
list of voters of any of the towns classed with such town. 
The selectmen of each classed town shall hold sessions for 
the correction of the list of voters in the manner provided 
for other towns, giving at least seven days' notice thereof; 
but no session shall be holden for such purpose on the day 
of the election, except in the town in which such election 
is to be holden. — Gen. Sts. pp. 87, 88, o. 82, ss. 10,11. 

An attested copy of the check-list, as corrected by the 
selectmen of each classed town, shall be filed by them with 
the town clerk of the town in which such meeting is to be 
holden, before the opening of such meeting, or, in his ab- 
sence, with one of the selectmen. — id. 



46 REGULATING AND POSTING CHECK-LIST. 

13. When unnecessary. No check-list is required at a 
meeting merely for the choice of town officers and the 
transaction of town business. — Gen. Sts. p. 81, c. 28, s. 1. 

14. The form of a check-list may be : 

List of voters in the town of . 

An alphabetical list (1) of all the legal voters in the town of 
made and posted by the selectmen of said town on 



this day of February, 18- 

Abbott, Horace, 
Abbott, William, etc. 

The selectmen of said town give notice that they will be 
in session for the purpose of correcting the above list at 

, in said town, on the day of next, at — 

o'clock in the noon ; and also at , in said , 



on the day of next, from — o'clock in the 

noon until — o'clock in the noon, the hour of 

opening the town meeting. 

Given under our hands at said , this day 

of , 18—. 

) Selectmen 

\ of 



(1) There should be a new list for each town meeting. 

15. Form of the certificate left with the town 

CLERK : 

February, 18 — . We certify (1) that on this 



day of February we posted at , a public place 

in said town, an alphabetical list, of which the within is a 
duplicate, of all the legal voters in said town. 

) Selectmen 

S of 



(1) As the town-clerk is, by Gen. Sts. c. 32, s. 2, required to certify to the posting, 
the selectmen should furnish him with the proper evidence of the fact. 



EIGHTS AND QUALIFICATIONS OP VOTERS. 



47 



CHAPTEE IX. 



RIGHTS AND QUALIFICATIONS OF VOTERS* 



Aid ts another town, s. 5. 

As a county pauper, s. 6. 

Within 90 days, ss. 2, 5, 6. 
Aliens cannot vote, ss. 1, 8. 

Who are not aliens, s. 8 (a), (b). 
Bribery and intimidation, ss. 37, 38. 
Citizens, who are, s. 8 (a) (b). 

DWELLING PLACE AND HOME, SS. 12-22. 

Change of purpose, s. 36. 

Commencement of, s. 15, s. 15 (1), (2). 

Definition of home, s. 14. 

How acquired, ss. 15-26. 

How lost, ss. 27-33. 

Proof of, s. 34. 

Time, effect of, s. 35. 
" Domicil," not necessarily " a home," s 

14 (3), s. 31 (1). 
Education, residence for, s. 34. 



Family residence, ss. 18, 19, 20. 
Evidence, rules of. s. 34. 
Idiots and Lunatics, s. 25. 
Military duty, place of, ss. 10, 13. 
Minors not emancipated, ss. 24, 30. 
Paupers, cannot vote, s. 1. 

Aid in 90 days, ss. 2, 5, 6. 

Payment by, ss. 5, 6. 
Residence, meaning of, s. 14 (1). 
Settlement, place of, s. 12, s. 31 (1). 
Six months' residence, ss. 9, 13. 
Taxation, place of, s. 13, s. 14 (3). 
Temporary absence, s. 10, s. 14 (3). 

Burden of proof, s. 34. 

Evidence to prove, s. 34. 

Rules for determining, ss. 27-33. 
Treating- at elections, s. 38- 
Voting elsewhere, effect of, s. 11. 



1. Voters, who are. Every male inhabitant of each 
town, being a native or naturalized citizen of the United 
States, of the age of twenty-one years and upward, except- 
ing paupers and persons excused from paying taxes at their 
own request, shall have a right, at any meeting, to vote in 
the town in which he dwells and has his home. — Gen. Sts. 
p. 80, c. 27, s. 1. 

2. Aid within ninety days. No person shall be consid- 
ered a pauper within the meaning of the preceding section 
unless he has been assisted as such within ninety days prior 
to the meeting in which he claims the right to vote. — id. s. 2. 

3. Payment op abated taxes. No person, otherwise a 
legal voter in any town, shall be deprived of his right to 
vote by reason of having been excused from paying taxes 
at his own request, if he shall, before he offers to vote, 
tender payment of all taxes assessed against him during 
the year prior to his offer to vote, to the moderator, collec- 
tor of taxes, or one of the selectmen, and, at the time he 
offers to vote, present evidence of such tender. — id. s. 3. 

4. Payment for supplies. No person shall be deprived 
of the right to vote by reason of having received assistance 
from the town for himself or family, if he shall tender pay- 
ment as aforesaid of all reasonable expenses which such 
town has incurred within ninety days, by reason of such 
assistance ; but, upon making such tender, shall have his 
name placed upon the check-list, and his vote shall be 
received. — id. s. 4. 



48 EIGHTS AND QUALIFICATIONS OF VOTERS. 

5. Aid in another town. Any person who shall have 
been excused from paying taxes in any other town, or shall 
have received help for himself or family, within ninety days, 
from the county, or any town other than that in which he 
offers to vote, shall, if otherwise qualified, be entitled to 
vote at any election by tender of payment as provided in 
section four of said chapter, and not otherwise. — Laws of 
1868, c. 1, s. 3. 

6. County paupers. Paupers not chargeable to any 
town shall not be entitled to vote at any election, except 
upon such tender of payment of all reasonable expenses of 
any assistance received from the town or county for himself 
or family within ninety days. — id. s. 4. 

7. Money to be paid over to town entitled. Any 
money received under the provisions of this act shall be 
paid to the town or county entitled by the person or persons 
receiving the same. — id. s. 5. 

8. Aliens. No alien not naturalized shall be entitled to 
vote at any town meeting. — Gen. Sts. p. 81, c. 27, s. 5. 

(a) A child born in the United States, of alien parents, though temporarily residing 
here, is a citizen, and so is a child born abroad of American parents, upon coming here 
and claiming his rights as such.— 2 Kent's Com. 51, 52; Acts of Congress of April 14, 
1802, and Feb. 10, 1855; 9 Mass. 454; 28 Barb. (N. Y.) R. 383. 

(b) If the father is naturalized, his minor children become citizens if dwelling within 
the United States at the time, (2 Kent, 51, 52,) and so of the children of a widow who 
is naturalized.— 9 Md. 74; 17 U. S. Digest, p. 43, s. 74, p. 121. 

9. Six months' residence. No person shall be consid- 
ered as dwelling or having his home in any town, for the 
purpose of voting or being voted for at any meeting, unless 
he shall have resided within such town six months next 
preceding the day of meeting. — id. s. 6. 

10. Temporary absence. A residence acquired by any 
person in any town shall not be interrupted or lost by a 
temporary absence therefrom, with the intention of return- 
ins: thereto as his home. — id. s. 7. See ss. 27-34. 

11. Voting elsewhere. Any person who shall exercise 
the privilege of voting at any election in any town within 
this or any other state, shall be deemed by that act to have 
elected such town to be his legal residence for the purpose 
of voting, and shall thereafter be disqualified to vote in any 
other town, until he shall have gained a new residence as 
hereinbefore provided. — id. s. 8. 

12. Dwelling-place or home. This in most cases is 
easily determined. It is in the doubtful cases that defini- 



RIGHTS AND QUALIFICATIONS OF VOTERS. 49 

tions and rules become necessary, and these must be re- 
ceived with such qualifications as the good sense of those 
who are to apply them will suggest. See ss. 13-34. First 
of all it is essential that the facts be correctly ascertained. 
See s. 34. 

13. For all purposes. Eights and duties cannot be 
separated, and the home of a person for voting is his home 
for taxation and military duty, with the addition of a six 
months' residence, and is also his home for the purpose of 
gaining a settlement.— 10 R. 451, 457, 567 ; 11 R. 48 ; 3 R. 
123 ; Digest, p. 290, ss. 6, 10, 11 ; 1 Met. R. 252 ; 5 do. 
298 ; 23 Pick. 170, 176 ; 1 American Leading Cases, 742 ; 
3 Fair. 436 ; 33 Vt. 55. 

14. Definition. " Home " may be defined to be the 
house or place where one actually or constructively resides 
(1), with an intention to remain permanently or for an 
indefinite (2) time, and having no other particular place to 
which he intends to go or return (3) as his home. — Story's 
Conflict of Laws, ss. 41, 42, 44 ; 44 R. 383 ; 45 R. 427 ; 
11 R. 48-51 ; 17 R. 235, 243 ; 15 R. 138 ; Digest, p. 289, 
ss. 1-3. See also s. 15 (2), s. 31 (1). 

(1) The word " reside " is used in two senses ; the one, constructive, technical, legal ; 
the other denoting the personal actual habitation. When a person has no permanent 
habitation or family, but dwells in different places as he happens to find employment, 
he must be considered as residing where he actually or personally resides. .".... 
But some individuals have permanent habitations where their families constantly 
dwell, yet pass a great portion of their time in other places. Such persons have a legal 
residence with their families, and a personal residence in other places.— Per Richard- 
son, C. J., 3 R. 124, and cited and approved by Woods, J., in 17 R. 244. 

(2) An intention to remain permanently, or for some indefinite time, is essential, in 
order to make the place of actual residence the home of the party. — 44 R. 383: Digest, 
p. 289, s. 2. ' 

(3) In some cases of a temporary absence, the person may intend to stay for an in- 
definite time, as when one leaves home to do a certain piece of work, and it is uncertain 
how long it will take him, or is detained by sickness, and it is uncertain when he will 
be able to travel; but in all such cases, the object or purpose for which he intends to 
remain is definite, and of a temporary character. 

So, too, a person who abandons his former home may intend to stoi> on his way to a 
new contemplated home, for an indefinite time to visit his friends or transact "some 
particular business. Such a person is held in Mass. to be taxable in the town from 
which he removes, so long as he is in the state, but not afterwards.— 3 Gray, 493; 12 
Allen, 598. Bat in Maine, a person who has abandoned his home in one town, with an 
intention not to return, is considered to have no " dwelling place or home " there, with- 
in the meaning of the pauper-laws, although he has acquired no new home, (15 Maine 
5S; 19 Maine. 293,) and this seems to us areasonable construction of those terms. And 
see 3 Met. 199; 19 Vt. 287. 

But the succession of property, when a person dies on the wav from an old to a new 
home, is governed by the laws of the former, and his domicil, as that word is used in 
international law, is not lost until a new one is acquired.— 1 American Leading Cases, 
756. 

15. How acquired. A home is never acquired by a con- 
structive residence, nor by a mere intention to remove ; 
there must be an actual removal (1). It is not essential, 

4 



50 EIGHTS AND QUALIFICATIONS OF VOTERS. 

however, to the commencement of a legal residence at a 
particular time, that the entire family or effects shall have 
arrived, if the former home has been abandoned and the 
man himself (2) has come to his new residence with the 
intention of making it his home. 

(1) Where a house was hired on the 29th ot Oct. but was not to be occupied until the 
12th of Nov., on which day the family was removed to it, it was held that the man's 
former residence continued until that day, although he had occasionally slept in the 
house between those dates. — 11 Mass. 424, 431. 

(2) The plaintiff, in 1836, went to Hooksett to preach a year, and at the end of the 
year went with his wife to her lather's in Bedford on a visit. This was about the 
middle of March. In the course of that month he engaged to preach a year in Merri- 
mack, commencing on the first Sabbath in April. He went to M. on the first day of 
April to perform that engagement, his wife remaining a few days longer at her lather's 
and he returning there to complete his visit, after wnichboth resided at M. Held, that 
he was lawfully taxed there. — 10 R. 452. 

Two things are here to be observed : 1. The engagements both at H. and at M. were 
for a year only; but the court say, in substance, " He went to H. under a temporary 
engagement for a year, but may well have contemplated remaining there an indefinite 
time, having no other home to return to and no intention at that time of removing to 
an j r other place ; he must also be understood to have had the same intention of resid- 
ing at M. an indefinite time, for he had taken up his personal residence there with an 
intention of pursuing his calling there for a year at least ; he had no home to return to 
elsewhere, and so far as appears no intention of going to any particular place at the 
expiration of that time." He was therefore considered to have had a home in M. 
2. And his residence there was held to have commenced on the first day of April, al- 
though his wife was then at her father's and he returned to complete his visit, for, un- 
like the Mass. case last cited, the old home had been abandoned and he had taken up 
an actual, personal residence in the new. 

16. Intention to remain. A general intention to remain, 
with no definite purpose to remove, is an intention to re- 
main for an indefinite time. — 45 R. 427. 

If one's place of actual residence is intended to be his 
home for the present, it is his home though he may have in 
contemplation many contingencies which would induce him 
to go elsewhere, or even be resolved to leave for a new 
home as soon as he can better his condition or make ar- 
rangements to his satisfaction. — s. 14 (1), (2), (3), s. 15 
(2), s. 31 (1); 45 E, 427 ; 19 Vt. 270 ; 17 R. 235 ; 13 Maine 
225, 228 ; 7 Gray, 299 ; 33 Vt. 110 ; 29 Conn. 81 ; 19 Vt. 
396 ; 12 Allen, 111 ; 9 Gray, 357. 

17. Mode of living. This is not material, whether as 
owner, tenant, boarder, or at lodgings, except as evidence 
of the intention of the party, for a person may have a home 
in any of these modes. — 1 Binney, 349-355 ; 1 American 
Leading Cases, 744. 

18. Family residence. A married man is presumed to 
have his home with his family, but this presumption is not 
conclusive : they may be absent from a new home which he 
has acquired merely until he can remove them, or they may 
have removed without his consent in his absence, or he may 



RIGHTS AND QUALIFICATIONS OF VOTERS. 51 

have abandoned them altogether, and in none of these cases 
would his home be considered to be at the place where they 
personally reside. — s. 15 (2) ; Story's Conflict of Laws, 
s. 46 ; 10 R. 570 ; 8 Maine, 203 ; 3 do. 455 ; 2 do. 411 ; 3 R. 
123. In general the wife and unemancipated minor children 
must be considered as having their home in a legal sense 
at the home of the husband and father, wherever that may 
be— id. ; 6 Conn. 45 ; 1 Binney, 349 ; 1 American Lead- 
ing Cases, 735, 757 ; 11 Pick. 411, 414, 415 ; 5 R. 348 ; 
but not to defeat her filing an application for a divorce. — 
14 Pick. 181 ; 9 Greenl. 140 ; Digest, p. 287, ss. 47, 50, b5, 
5Q, 57. 

19. Place of business. If a man has his family in one 
town and his place of business in another, the former is in 
general to be deemed his home. See s. 18, s. 31 (1). 

20. Two residences. If a man has a summer residence 
for himself and family in one town, and a winter residence 
in another, he may elect in which town to exercise his civil 
rights, and that will be deemed his home in a legal sense 
which he treats as such. — Story's Con. of Laws, s. 47 ; 5 
Pick. 370. 

21. Boarding and lodging. When a man boards in one 
town and sleeps in another, or has his dwelling-house upon 
the town line, it has been considered that he will be deemed 
to have his home in that town in which he habitually sleeps, 
if that can be ascertained. — 22 Pick. 118 ; 1 American 
Leading Cases, 751. 

But it is not readily perceived why he should not have 
an election as in the preceding section. 

22. If no fixed abode. When a person has no perma- 
nent habitation or family, but dwells in different places as 
he happens to find employment, he must be considered as 
residing where he actually or personally resides — 17 R. 
244; 3 R. 124; Digest, p. 289, s. 4 ; 33 Vt. 52; and 
therefore he must have been six months in the same place 
or he cannot vote. In Maine such a person is held to have 
no home for the purpose of gaining a settlement. — 3 Maine, 
229. Sees. 14 (1), (3), s. 15.(2). 

23. But one home. A person can have but one home 
at one and the same time ; nor has he any right of election 
except as stated in ss. 20, 21, ante. Hence, however difficult 
it may be in a given case to decide between two towns, if 



52 RIGHTS AND QUALIFICATIONS OF VOTERS. 

the person has the right to vote in the one, he cannot right- 
fully vote in the other. — 23 Pick. 177 ; 1 American Lead- 
ing Cases, 754, II ; 7 Gray, 301. 

24. Parental home. If a minor has not been emanci- 
pated his home, upon arriving at twenty-one, is at his 
parents' ; but if after becoming of age he leaves their home, 
without intending to return to it to live there, and goes 
elsewhere to reside either permanently or for an indefinite 
time with no intention of removing thence to another 
determinate place, the place to which he then goes becomes 
his home, and he has no other. — ss. 14, 30 ; 17 P. 244 ; 1 
E. 196; 15 P. 138. 

And after he comes of age, or has been emancipated 
though under age, his home does not change with the 
parents' home, unless he goes to the new place of residence 
as his home, and only from the time of his going. Until he 
is of age or emancipated, the reverse is true. — ss. 18, 30. 

What is to be deemed an emancipation, see post, chapter 
57, ss. 5, 6 (a). 

25. Idiots and insane persons cannot change their legal 
residence or vote unless of sufficient capacity to do it with 
understanding. — 45 K. 427 ; Digest, p. 290, s. 12 ; Cush- 
ing's Law and Practice, etc., ss. 24, 66. 

26. Voluntary. Residence in a place, to produce a 
change of home in the legal sense, must be voluntary, and 
not by arrest or imprisonment. — Story's Conflict Laws, s. 
47 ; 33 Vt. 110 ; 21 Vt. 563 ; but see 19 Conn. 561, as to 
the effect of confinement in a state prison. 

27. Temporary absence, what is ? The rules upon which 
the question is to be decided are in general well established, 
and they should receive such an application as on the one 
hand not to exclude bona fide residents for the required 
period, nor on the other allow non-residents to control or 
interfere in our affairs. The suggestions made in the pre- 
ceding sections, and particularly in section 13, may be use- 
ful for those for whom this work is designed as well as ss. 
28 -36, post. 

28. Intention to return. This must be absolute and not 
contingent upon success in business or the like ; the voter 
should be able to state the time or anticipated event upon 
which he intended to return ; and the object for which he 
left must have been a temporary one. — s. 14, (3) ss. 16, 
29-34. 



wm 



EIGHTS AND QUALIFICATIONS OF VOTERS. 53 

29. Design in returning. The person must have in- 
tended to return to his former residence to reside, or " to 
liye," as it is commonly expressed. An intention to return, 
to make a visit, or to vote at town meeting, is clearly in- 
sufficient ; and the case is not altered though a few articles 
of clothing or other property may have been left to give 
color to the claim. Such a person did not intend to return, 
and does not return to the place " as his home" in a legal 
sense and for all purposes. See ss. 13, 14, 16, 31 (1). 

30. The case of a son is in no way different from any 
other, except if he is not established in business elsewhere 
and is unmarried, an intention to return to his father's 
house to reside may be more readily inferred than in some 
other cases. But if in point of fact such has not been his 
intention, he has no rights there as an inhabitant, and is 
subject to no liability. See ss. 13, 14, 16, 24. 

31. Something to return to. A general intention to 
return to the same town or city is not enough. Unless there 
is some particular habitation or spot to which the party in- 
tends to return, his intention to return, if he has any, is 
contingent and uncertain ; it is an intention not to return 
to a home, for he has no home to which to return, but an 
intention to acquire a home in that town at some future in- 
definite time, and his residence is lost. — ss. 14, 15 ; 45 R. 
427 ; 2 Basanquet v. Puller, 229 n. ; 7 Gray, 301 ; 19 Yt. 
270 ; 33 Yt. 164 ; 37 Maine, 389 ; 19 Maine, 293. 

(1) "No case can be ftnind (says Bigelow, J, in speaking upon this subject,) where 
the domicil of a parly has been made to depend on a bald intent unaided by other 
proof."— 7 Gray, 301. And Redfield, J., after referring to decided cases of a temporary 
absence, says : " But in all these cases there is always some place which the party 
may justly call home, some local habitation which has a tangible, palpable existence 
out of the mind of the party. I do not say that this is always indispensable; but 
there must be something more than a mental purpose to return at some indefinite 
future time."— 19 Vt. It. 270. 

" A mental purpose to return at a future indefinite time, when there is no particular 
home to return to, is not the animus revertendi that determines residence."— Per. 
Aldis, J., 33 Vt, 164. 

"Dwelling-place or home in the settlement law means some permanent abode or 
residence with intention to remain ; and is not synonomous with domicil as used in 
international law, but has a more limited and restricted meaning."— 19 Maine, 293; 37 
Maine, 389. 

" An individual abandoning his home or dwelling-house with or without design of 
acquiring one elsewhere, has no home by construction in the place abandoned. — id. 
But 43 Maine, 406, 418, 2 Greenl. 411, do not require that the person should have a 
particular house to which he can resort as a matter of right. 

A residence for the purpose of voting was held to have been lost by an actual 
removal of the man and his family to another state and setting up house-keeping 
there, although done with an intention of returning again as soon as he could procure 
a house to live in, and notice given to the selectmen at the time that he was about to 
remove for a temporary purpose and intended to retain his domicil, and although he 
did in fact retain his place of business, and returned before the day of election after an 
absence of about six months. — 7 Gray, 299. 



54 RIGHTS AND QUALIFICATIONS OF VOTERS. 

32. If no new home. A home may be lost (1) without 
acquiring a new one ; and, under one statute (ante, s. 9,) 
a new home may be acquired for all other purposes, and 
the party not be entitled to vote anywhere. 

(1) 45 R. 427; 37 Maine, 389; 19 Maine, 293; 19 Vt. 270; 15 Maine, 58. See s. 14 (2). 

33. For education. Section 2, c. 50, Gen. Sts., provides 
that " residence in any town merely for the purpose of 
obtaining an education at any literary institution shall not 
subject the person so residing to taxation in such town." 
Nor would such person be entitled to vote there, but is to 
be deemed as temporarily absent from his former home. 
A young man, however, may acquire a home in a town 
where a college or academy is located, notwithstanding his 
motive in doing so is to obtain an education, and all such 
cases are to be determined by the rules which govern others. 
—5 Met. 587-590 ; 44 R. 383 ; 17 R. 243 ; 10 Mass. 488. 

34. Evidence. The place where a person lives is taken 
to be his home, until other facts establish the contrary (1). 
It is therefore for the person who has left his home to show 
that it was for a temporary purpose, and with an intention 
of returning thereto as his home. 

The party himself may testify, but it is for the selectmen 
to find, not what he may now say or think was his inten- 
tion, but what was in fact his real purpose, and all the 
attending circumstances and any declarations he may have 
made at or about the time of his leaving are carefully to 
be considered. 

As against the town, admissions by the town, or by the 
acts of its agents in affording relief to paupers, are competent 
to show residence. — 7 Gray, 229 ; Digest, p. 516, s. 88. 

(1) 17 R. 243; Story's Conflict of Laws, s. 46; 1 American Leading Cases, 749; 14 
Howard, 423. 

35. Time is an important though not a controlling con- 
sideration. A residence may have been lost after an ab- 
sence of but a single day, and it may remain after months 
and years of absence. A home for all purposes but voting 
may be acquired by the shortest residence, if with the design 
of a permanent settlement. — 15 (2) ; 1 American Leading 
Cases, 747. 

36. Change of purpose. An intention of permanent 
residence may often be engrafted upon an inhabitancy orig- 



CONDUCT OF TOWN MEETINGS. 



55 



mally taken for a special or fugitive purpose ; and on the 
other hand there may be an intention to change that is 
never carried into effect. — Story's Conflict of Laws, s. 45. 
By an abandonment of an intention to return, for ever 
so short a time, the former residence is lost. — 21 Maine, 
357. 

37. Bribery and intimidation. If any person shall di- 
rectly or indirectly hire or procure, or attempt to hire or 
procure, by payment, promises, threats, or intimidations, 
any other person to stay away from any town meeting, or 
to avoid voting at any town meeting, or to vote for or 
against any particular ticket or candidate for office, or to 
procure him to ask the abatement of his taxes, or to be 
excused from paying taxes, in order to prevent him from 
voting at any election, such person shall be fined not more 
than fifty dollars, or be imprisoned not more than thirty 
days. — Gen. Sts. p. 89, s. 8. 

38. Treating. If any person shall directly or indirectly 
give spiritous liquor to any voter at any time, with a view 
to influence any election, or as a treat for his vote, or for 
the honors bestowed on any candidate at such election, he 
shall be fined not more than twenty dollars for each 
offence. — id. s. 7. 



CHAPTER X 



CONDUCT AND GOVERNMENT OF TOWN MEETINGS. 



Assault upon officers, s. 13. 
Ballot-boxes, to be prepared, s. 3. 

Destruction of, s. 13. 
Balloting, when necessary, s. 14. 

Mode of proceeding, s. 16-18. 

Names upon ballots, s. 15. 

Several upon one ticket, ss. 17, 18. 
Blank tickets, what are, ss. 15, 18. 
Check-list required, ss. 1. 16. 

Removal or destruction of, s. 13. 
Constable, duties of, s. 10, 11. 

Penalty for neglect, s. 12. 
Declaration of votes, ss. 7, 19, 22, s. 24 

(1). 
Disorderly persons removed, etc., ss. 

10-13. 
Election laws to be present, s. 2. 
Fraud in sorting- and counting, s. 28. 
Illegal voting, penalty for, s. 29. 
Justice to preside, when, s. 5. 



Majority, how determined, ss. 24. 25. 
Moderator, choice of, and duties, s. 6. 

May prescribe rules, s. 7, s. 26 (a). 

Must preserve order, ss. 9-13. 

New moderator, s. 8. 
Penalty for disturbance, ss. 9, 13. 

For fraud in counting, etc., s. 28. 

For illegal voting, s. 29. 

For neglect of constable, s. 12. 

For neglect to poll house, s. 27. 

When no other specified, s. 30. 
Polling the house, s. 26, s. 26 (a). 
Preservation of order, ss. 9-13. 
Rules of proceeding, s. 7, s. 26 (a). 
Selectmen, duties of, ss. 1, 3, 4, 8, 20. 

Penalty for fraud, s. 28. 
Sorting and counting, ss. 19-25. 
Tellers, appointment of, s. 26, s. 26 (b). 
Town clerk, duties of, ss. 2, 4, 8, 16, 20. 



1. Corrected list. The selectmen shall be present at 



56 CONDUCT OF TOWN MEETINGS. 

the opening of the meeting, and have with them the list of 
legal voters as corrected. — Gen. Sts. p. 82, c. 28, s. 6. 

2. Election laws. The town clerk shall have with him, 
in the meeting during its continuance, all the laws in force 
relating to the subject of elections. — Gen. Sts. p. 83, c. 28 ? 
s.17. 

He must keep a correct record of the proceedings. See 
chapter 11 for form of record. He must be sworn. 

3. Ballot-boxes. A suitable box or boxes shall be pro- 
vided by the selectmen, at the expense of the town, in 
which to receive the ballots of the voters. — Gen. Sts. p. 82, 
c. 28, s. 7. 

4. The first or senior selectman present, and, if no 
selectman be present, the town clerk, shall preside until a 
moderator is chosen, and have the powers and perform the 
duties of moderator. — Gen. Sts. p. 95, c. 36, s. 1. 

5. Justice to preside, when. When there are no se- 
lectmen or town clerk, it shall be the duty of the justice 
calling the meeting to attend and preside until a moderator 
is chosen. — id. s. 2. 

6. A moderator shall first be chosen by ballot, by a 
plurality of votes, who shall preside in and regulate the 
business of the meeting. — id. s. 3. The moderator should 
be sworn before acting. 

7. Rules of proceeding. He may prescribe rules of 
proceeding, which may be altered by the town ; he shall de- 
cide all questions of order, and make a* public declaration 
of all votes passed. — id. 

8. New moderator. Whenever the moderator of any 
town meeting shall, from any cause, resign or leave his 
place, and cease to preside in the meeting before the ad- 
journment or dissolution thereof, the voters present may 
proceed forthwith to choose by ballot, by plurality of votes, 
a new moderator, who shall be sworn, and proceed in the 
meeting, to the close thereof, in the same manner as the 
moderator first chosen might have done ; the first or senior 
selectman present, or, if no selectman be present, the town 
clerk, shall preside until such new moderator is chosen. — 
Gen. Sts. p. 96, c. 36, s. 5. 

9. Preservation of order. No person shall speak in 
any meeting without leave of the moderator, nor when any 
person is orderly speaking ; and all persons shall be silent 



CONDUCT OF TOWN MEETINGS. 57 

at the desire of the moderator, on pain of forfeiting one 
dollar for each offence, for the use of the town. — id. s. 6. 

10. Removing disturbers. If any person shall conduct 
in a disorderly manner, and, after notice from the modera- 
tor, persist therein, or shall in any way disturb the meeting, 
or willfully violate any rule of proceeding, the moderator 
may command any constable or any legal voter of the town 
to remove such disorderly person from the meeting, and 
detain him until the business is finished. — id. s. 7. 

11. Constables, duties of. Every constable shall obey 
the orders and commands of the moderator for the preser 
vation of order, and may command such assistance as is 
necessary. — id. s. 8. 

12. Penalty for neglect. If any constable neglect to 
perform any of the duties imposed by this or the preceding 
chapter, he shall forfeit forty dollars, for the use of the 
town. — id. 

13. Assault upon officers. If any person shall will- 
fully assault any town, city or ward officer, in the discharge 
of any duty of his office at the annual or other election, or 
take away, injure or destroy the ballot-box or check-list, 
when in use at any annual or other election, he shall be 
fined not more than three hundred dollars, or be imprisoned 
not exceeding three years. — Gen. Sts. p. 90, c. 33, s. 12. 

14. Ballot, when necessary. State and county officers, 
representatives to congress, electors of president and vice- 
president, and the moderator, town clerk, selectmen, asses- 
sors and superintending committee must be chosen by 
ballot. 

15. Names upon. The full christian and surname of 
every person voted for, with the initial letter or letters of 
the middle name, and the usual abbreviations for junior, 
second, third, and the like, shall be written or printed upon 
every ballot ; and every ballot not thus prepared and cast 
shall be regarded as a blank and not counted. — Gen. Sts. 
p. 82, c. 28, s. 8. 

16. Balloting, mode of. Each voter shall deliver his 
ballot to the moderator in open meeting, and the modera- 
tor, on receiving the ballot, shall direct the town clerk to 
check the name of the voter on said list, and shall, with- 
out inspecting the name of any person voted for, examine 
said ballot so far only as to determine whether the same 



58 CONDUCT OF TOWN MEETINGS. 

contains more than one ticket ; if it do not, he shall place 
the ballot in the balloting box ; but if it do, he shall make 
it manifest to the meeting, and reject the same. — id. s. 9. 

17. Several upon one ticket. In balloting for state 
and county officers, representatives to congress, or electors 
of president and vice-president, the ballots for so many of 
said officers then to be voted for as the voters present may 
direct shall be given in on the same ticket, with the re- 
spective offices designated against the name of each person 
voted for. — id. s. 9. 

18. No one required to vote for all. If several offi- 
cers are to be voted for upon one ticket, no person shall be 
obliged to vote for each. When more than one description 
of officers are voted for on the same ticket, any ticket 
which does not contain at least one vote for each descrip- 
tion of officers shall be regarded as a blank as to the de- 
scription of officers omitted. — id. s. 11. 

19. Sorting and counting. The moderator shall, in the 
meeting, in presence of the selectmen and town clerk, sort 
and count the votes, and make a public declaration of the 
whole number of tickets given in, with the name of every 
person voted for, and the number of votes for each person ; 
and the town clerk shall make a fair record thereof at 
large in the books of the town. — Gen. Sts. p. 83, c. 28, s. 
15. See s. 24. 

20. The selectmen and town clerk shall assist in sort- 
ing and counting said votes ; but no other person shall in 
any manner interfere therewith. — Gen. Sts. p. 82, c. 28, s. 12. 

21. No ballot shall be received and counted after the 
votes have been declared. — Gen. Sts. p. 83, c. 28, s. 16. 

22. Blank tickets are not to be counted. See ss. 15, 18. 

23. Fraudulent counting, etc. See s. 29. 

24. Majority, how ascertained. In determining the 
result of any election, the whole number of persons voting 
for any officer shall first be ascertained, by counting the 
whole number of separate tickets given in, and no person 
shall be declared elected to any office who shall not have 
received a majority (1) of the whole number of tickets 
given in for such office, except in cases otherwise specially 
provided for.— Gen. Sts. p. 82, c 28, s. 13. 

(1) A majority of any even number is a majority of the next higher odd number ; thus 
six is a majority of ten, and also of eleven, and seven is a majority of twelve and thir- 



CONDUCT OP TOWN MEETINGS. 59 

teen, but not of fourteen, for it is not more than one half. If a ticket hears a vote for 
governor but not for senator, as to the former but not the latter is it to be counted 
in ascertaining the whole number of tickets given in, of which declaration is to be 
made ; and so of other officers voted for from one ticket. See post, p. 64, (4). 

25. If too many have a majority. If a number of can- 
didates greater than the requisite number shall severally 
receive a majority, a number, equal to the requisite num- 
ber, having the greatest excess over such majority, shall be 
declared elected. But if the number to be elected cannot 
be completed by reason of any two or more candidates 
having received an equal majority, one or more being 
greater than the requisite number, the candidates having 
such equal majority shall be declared not to be elected. — 
Gen. Sts. p. 83, c. 28, s. 14. 

26. Polling the house. When any vote, other than by 
ballot, declared by the moderator or other officer presiding, 
shall immediately, and before any other business is com- 
menced, be questioned by seven or more of the voters 
present, the moderator or other officer presiding shall make 
the vote certain by a poll of the voters. — Gen. Sts. p. 96, c. 
36, s. 4. 

(a) Under his authority to prescribe rules for proceeding the moderator may take a 
vote by tellers, for his own satisfaction, before declaring the state of the vote, as where 
he is unable to determine bv the show of hands ; and in such a case there may be a 
second poll of the house.— 19 R. 215; Digest, p. 609, s. 77-80. 

(b) If a vote be called in question in court, the report of tellers will be deemed prima 
facie correct.— 19 R. 215; Digest, p. 332, s. 129. 

27. Penalty for neglect to poll. If any moderator or 
other officer presiding shall willfully neglect or refuse to 
make any vote certain by a poll of the voters, when re- 
quired as aforesaid, or shall willfully violate or neglect to 
enforce any rule of proceeding which shall have been es- 
tablished by vote of the town or otherwise, he shall, for 
each offence, be fined not exceeding five hundred dollars, 
or be imprisoned not exceeding six months. — id. s. 4. 

28. For fraud in counting, etc. If any moderator or 
selectman, at any meeting, shall fraudulently receive and 
count any illegal vote, omit to receive and count any legal 
vote, or shall fraudulently embezzle any vote from the num- 
ber of legal votes cast, or add any vote thereto, or shall 
receive or count any vote given at such meeting by proxy 
and without the personal delivery of such vote by the per- 
son entitled to give the same, or shall fraudulently declare 
the state of the vote in the election of any officer, he shall, 



60 



RECORD OF TOWN MEETING. 



for each offence, be fined not less than three hundred dol- 
lars, and be imprisoned not less than six months. — Gen. 
Sts. p. 89, c. 33, s. 10. 

29. For illegal voting. If any person, at any meeting 
for the choice of officers, shall give in more than one vote 
for any officer voted for at such meeting, or if any person 
under the age of twenty-one years, or any alien not natu- 
ralized, or any person who is not a legal voter, shall give in 
any vote for any officer at such meeting, or if any person, 
being under examination as to his qualifications as a voter 
before the board of selectmen, shall give any false name or 
answer, he shall be fined not more than thirty dollars for 
each offence, or be imprisoned not more than three months, 
id. s. 9. 

30. If no penalty specified. If any person shall be 
guilty of any offence against any provision of the laws re- 
lating to elections for which no penalty is specified, he 
shall be fined not more than thirty dollars. — Gen. Sts. p. 90, 



c. 



s. 13. 



CHAPTER XI. 



RECORD OF TOWN MEETING. 



Adjournment, record of, s. 2 (7). 

To a different place, s. 2 (7). 
Certificate of posting, record of, s. 1. 
Clerk, old or new, which, s. 2 (2). 
Clerk, pro tern, s. 2 (2). 
" False " Record, penalty for, s. 3. 
" Legal " meeting, use of terms, s. 2(1). 
Majority, how determined, s. 2 (4). 



Oath of office, record of, s. 2 (5). 
Selectmen, choice of, s. 2 (3). 
Several yotes on one ticket, s. 2 (4). 
Town meeting, record of, s. 2. 
Votes, when sufficient, s. 2 (6). 
Warrant, record of, s. 1. 
Sufficiency of, s. 2 (6). 



1. Warrant. The town clerk should first record the 
warrant and the certificate of posting, with L. S. for the 
place of the seal, and attest the record of each, as — 

Received March — , 18 — , and recorded (1). 

A true record. 

Attest : , Town Clerk. 



etc. 



(1) Or if recorded the same day — "Received and recorded,' 

2. The record of the meeting may be as follows : — 

(a) At a legal (1) meeting of the inhabitants of the town 



RECOED OF TOWN MEETING. 61 

of , on the second Tuesday of March, 18 — , at , 

in said town, at — o'clock in the forenoon, 
(b) The meeting was called to order by 



the first or senior selectman, and the whole number of tick- 
ets given in for moderator was three hundred, upon which 

A B had seventy-five votes, 

D had one hundred votes, and 

E F had one hundred and twenty-five votes, and was 
declared elected moderator by said selectman, and, in open 
meeting, took the oath of office by law prescribed. 

(c) The following votes of the inhabitants of said town, 
present and qualified to vote for senator, were by them in 
open meeting given in to the moderator, and said modera- 
tor, in said meeting, in presence of the selectmen and town 
clerk, and assisted by them, sorted and counted said votes, 
and at the close of the poll made a public declaration of 
the whole number of tickets given in with the name of ev- 
ery person voted for, and the number of votes for each per- 
son, as follows : — 

(d) For G-overnor. 

The whole number of tickets given in was three hundred 
and thirty, upon which 

A B had one hundred and fifty votes, 
C D had one hundred and eighty votes. 

(e) For Railroad Commissioner. 

The whole number of tickets given in was two hundred 
and sixty-five, upon which 

E F had one hundred and twenty votes, 
G H had one hundred and forty-five votes. 

(f) For Councillor. 

The whole number of tickets given in was three hundred 
and forty, upon which 

1 K had eighty votes, 

L M had one hundred votes, 

N had one hundred and sixty votes. 

(g) For Senator. 

The whole number of tickets given in was two hundred 
and ninety, upon which 

R M had one hundred and ten votes, 
S T had one hundred and eighty votes. 



62 RECORD OF TOWN MEETING. 

(h) For Register of Deeds. 

The whole number of tickets given in was three hundred, 
upon which 

W R had one hundred votes, 

P S had one hundred and twenty votes, 

W H had eighty votes. 

(i) For County Treasurer. 

The whole number of tickets given in was three hundred, 
upon which 

P H had one hundred and forty votes, 
H B had one hundred and sixty votes. 

(k) For County Commissioner. 

The whole number of tickets given in was three hundred, 
upon which 

J F had one hundred and forty votes, 
I W had one hundred and fifty votes, 
H P had ten votes. 

(1) For Representative in Congress. 

The whole number of tickets given in was three hundred 
and ten, upon which 
F S had one hundred and fifty votes, 
L C had one hundred and sixty votes. 

(m) For Representatives to the General Court. 

The whole number of tickets given in was two hundred 
and seventy, upon which 

A C had one hundred and thirty votes, 

D P had one hundred and thirty votes, 

C D had one hundred and forty votes, 

E F had one hundred and forty votes, 
and said C D and E F were declared elected by the 
moderator. 

(n) For Town Cleric. 

The whole number of tickets given in was three hundred 
and twenty-one, upon which 

A B had one hundred and sixty votes, 

D C had one hundred and sixty-one votes, 
and said D C was declared elected by the moderator, 
and in open meeting took the oath of office by law pre- 
scribed. 

A true record. Attest: J D, Town Clerk (2). 



RECORD OF TOWN MEETING. 63 

For Three (3) Selectmen. 

The whole number of tickets given in was two hundred 
and two, upon which 

A B had one hundred votes, 

D C had one hundred votes, 

G F had one hundred votes, 

G H had one hundred and one votes, 

I K had one hundred and two votes, 

K S had one hundred and two votes, 
and said I K and K S were declared elected by the 
moderator. 

Upon a second balloting for a selectman, the whole num- 
ber of tickets given in was two hundred and one, upon 
which 

A B had one hundred votes, 

G H had one hundred and one votes, and was declared 
elected (4) by the moderator, and said G H, I K and 
K L, in open meeting, took the oath of office by law pre- 
scribed (5). 

[Here insert in the same manner the other town officers 
chosen by ballot.] 

Chose by major vote, J D, collector of taxes, who, in 
open meeting, took the oath of office by law prescribed. 

[Insert in this manner all other town officers not chosen 
by ballot]. 

Voted to raise the sum of dollars (6) for [state 

the object]. 

Voted to discontinue the highway leading from to 

, in said town of . 

[Here insert all other votes not before inserted, care 
being taken to make the record an accurate and intelligible 
account of the entire proceedings of the meeting] . 

Voted to adjourn (7) this meeting until the day of 

March instant, at — o'clock in the noon, at in 

said town. [Or, voted that this meeting be dissolved.] 

A true record. 

Attest : D C, Town-clerk. 

(1) This word is usual tiough inoperative and superfluous. 

(2) Under Gen. Sts. c. 37, s. 1, the old town clerk should certify down to the time 
when the new clerk is tworn. 



64 



STATE AND COUNTY OFFICERS. 



In the absence of any such statute the clerk of a meeting may certify the votes prior 
to his own election.— 13 Pick. 303, 306 ; 2 Pick. 402; and a clerk pro tern, may do the 
same.— Gen. Sts. p. 100, c. 39, s. 13. 

(3) The number to be chosen should be determined before balloting. 

(4) And he would have been elected the first time if the man who cut his name off 
had not voted at all. 

The difficulty would have been obviated if all the tickets had been made up : For first 
selectman, A B; for second selectman, D C, etc., so that the balloting could have 
been considered as several ballotings. But in all such cases any ticket that is not thus 
numbered must be counted against all the candidates, in ascertaining the number 
necessary for a choice, unless the meeting has voted that the tickets shall be num- 
bered. — Cushing's Law and Practice of Legislative Assemblies, p. 46, s. 123. 

If thus numbered the moderator would declare each vote separately. 

(5) This is the correct form, though a record of the oath in words of the same import 
will answer.— 28 R. 402, 411, 419, 430; Digest, p. 609, ss. 85, 87, 88. The record need not 
state before whom the oath was taken nor in what form.— 36 R. 302; 24 R. 314, Digest, 
p. 609, ss, 86, 87. Where the record of the oath is defective an amendment is admissible 
by leave of court.— 17 R. 420, Digest, p. 609, s. 92; Maine 466. See also 13. 

'(6) It is not necessary that the warrant should state specifically that the town will be 
called upon to vote to raise monev, if the object specified is one that would be likely to 
require money.— 11 Gray, 340, 342 ; 9 Pick. 97. See Digest, p. 596, II, p. 608, IV. 

The court will not be rigorous in the interpretation of town records, and especially 
in relation to the passage of by-laws, which are usually more inartificially expressed 
than any other laws.— Digest, p. 609, ss. 82, 83; 26 Conn. 406; 33 Vt. 229; 17 Maine, 444. 

All that is necessary in a vote raising money is that it indicate in general terms the 
purpose or object for which the money is raised.— 39 Vt. 336. 

(7) A vote to adjourn to a certain place, no time being stated, was held to import an 
adjournment forthwith, and that it might be presumed that the adjourned meeting 
was so held in the absence of any proof to the contrary, and the record being silent as 
to the time.— 45 R. 385, 395, Digest, p. 609, s. 73. But the record should always show the 
time and place of the adjourned meeting.— 2 Pick. 397. 

An adjournment to a different place is admissible.— 45 R. 395 ; 13 Maine 466. 

3. False record. If the clerk of any town or place shall 
willfully and corruptly make a false record of any vote or 
other proceeding, in any legal town meeting, or any false 
copy of any record, or any false certificate or return of 
votes, he shall be imprisoned from six months to five years. 



Gen. Sts. p. 89, c. 33, s. 6. 



CHAPTER XII. 



STATE AND COUNTY OFFICERS. 



Check-list, certificate of, s. 13. 

In classed towns, s. 21. 
Classed towns for representative, ss. 17, 

24. 
Councillor, cboice of, etc., ss. 1, 2, 3. 
County commissioner, choice of, ss. 

25-28. 
County officers, cboice of, ss. 25-28. 

Eligibility for, s. 26. 

Return of votes, ss. 3, 27. 
County treasurer, ss. 25-28. 
Corrections of returns, s. 9. 
Governor, choice of, etc., ss. 2, 3. 
Limitations of prosecutions, s. 8. 
Railroad commissioner, ss. 3, 11. 
Ratable polls, what are, s. 14. 

Certificate of, s. 13. 
Register of deeds, choice of, etc., ss. 

25-28. 
Receipt for returns, s. 4. 



Representatives to general court, 
s. 12. 

Certificate of election, s. 13. 

In classed towns, ss. 17-24. 

Towns specially authorized, ss. 15, 16. 
Return of votes, "and forms of, ss. 3, 
5, 27, 28. 

Blanks for returns, s. 10. 

Form of returns, s. 3. 
Secretary of state, duties of, ss. 4, 5, 

10. 
Selectmen, neglect of duty by, s. 24. 
Senator, choice of, etc., ss. 1, 2, 3. 
Solicitor to prosecute, when, s. 6. 
Town-clerk, duties of, ss. 2, 16, 23. 

Correction of return by, s. 9. 

False return, s. 9. 

Penaltv for neglect of duty, ss. 7, 24. 
Warrant in classed towns, ss. 19, 20. 



STATE AND COUNTY OFFICERS. 65 

1. Governor, etc., choice of. The meetings in the sev- 
eral towns, for the election of governor, councillors and 
senators, shall be holden on the second Tuesday of March, 
annually, and at no other time. — Gen. Sts. p. 83, c. 29, s. 1. 

2. Return of votes. The town clerk shall make out a 
fair and exact copy of the record of all votes given in at any 
such meeting for governor, for councillor, for senator, for rail- 
road commissioner and representatives in congress, upon 
distinct and separate pieces of paper ; shall certify upon 
each copy that the same is a true copy of said record, and 
shall seal said copies separately, and direct and forward the 
same to the secretary of state, with a superscription upon 
each expressing the purport thereof, on or before the first 
day of April next ensuing. — Gen. Sts. p. 83, c. 29, s. 2 : 
p. 84, c. 30, s. 4 ; p. 297, c. 143, s. 1. 

3. Form of return. The form of a return for any state 
or county officer, or representative in congress, upon a record 
made up as in chapter 11, p. 61, mite, may be as follows : 

At a legal meeting of the inhabitants of the town of 

, on the second Tuesday of March, 18 — , at , in 

said town, at — o'clock in the forenoon, the following votes 
of the inhabitants of said town, present and qualified to vote 
for senator, were by them in open meeting given in to the 
moderator, and said moderator, in said meeting, in presence 
of the selectmen and town clerk and assisted by them, sorted 
and counted said votes, and at the close of the poll made a 
public declaration of the whole number of tickets given in, 
with the name of every person voted for, and the number 
of votes for each person, as follows : 

For Governor. 
The whole number of votes given in was three hundred and 
thirty, upon which 

A B had one hundred and fifty votes, 

C D had one hundred and sixty votes. 

(i) **##*######**#*# 

A true record. 

Attest : J D, Town Clerk. 

A true copy of record. 

Attest : D C, Town Clerk. 

It will be seen that the above corresponds with the parts 
(a) (c) (d) in s. 2, p. 61, ante. A return for a railroad 
commissioner would correspond Avith the parts (a) (c) (e) — 
5 



66 STATE AND COUNTY OFFICERS. 

for councillor, with (a) (c) (f) — for senator, (a) (c) (g) — 
for register of deeds (a) (c) (h) — for county treasurer (a) 
(c) (i) — for county commissioner (a) (c) (k), — for repre- 
sentative in congress (a) (c) (1), — and for representatives 
to the general court, (a) (c) (m). The superscription 
may be as follows : 

To the 
Secretary of the State of New Hampshire, 
Concord. 
A true copy of the record of votes given in the town of 
, for , March , 18 — . 

(1) When proof of a record is made by a copy the copy need not be of the whole 
record but only of so much as relates to the subject matter. — 14 R. 101, 29 It. 471, 
Digest, p. 356, s.608. 

4. Receipt. The secretary, upon the receipt of any such 
copy, shall forward by mail to the town clerk a receipt 
therefor.— Gen. Sts. p. 84, s. 29, c. 3. 

5. If not received. Whenever any return of votes shall 
not have been received at the office of the secretary within 
the time prescribed by law, it shall be his duty immediately 
to notify the clerk of the town from which such return has not 
been received. Thereupon it shall be the duty of the delin- 
quent town clerk forthwith to forward such return. — id. s. 4. 

6. Notice to solicitor. The secretary of state shall, 
within thirty days after any default in the return of votes, 
certify the same to the solicitor of the county, which certifi- 
cate shall be prima facie evidence of such default ; and the 
solicitor shall prosecute every person guilty of such de- 
fault.— Gen. Sts. p. 89, c. 33, s. 2. 

7. Penalty for neglect to return. If any town clerk 
shall neglect to make any return of votes for representative 
in congress, electors of president and vice-president, or any 
state or county officer, he shall be fined from twenty to one 
hundred dollars. — id. s. 1. 

8. Limitation. No prosecution shall be sustained for 
neglect to make returns, unless commenced within one 
year after the commission of the offence. — id. 

9. Correction of returns. If the clerk of any town 
shall make an incorrect or insufficient record or return of 
the votes given therein at any meeting for any officer, the 
tribunal by whom said votes are opened and counted may 
require said clerk, at his own expense, to come in and 



STATE AND COUNTY OFFICERS. 87 

amend said record or return, according to the facts of the 
case. — Gen. Sts. p. 89, c. 33, s. 4. 

If any clerk shall neglect or refuse to appear and amend, 
he shall be lined fifty dollars. — id. s. 5. 

False return, penalty for, see ante, p. 64, s. 3. 

10. Blanks for return. The secretary shall prepare 
and distribute to the clerk of each town, seasonably, before 
every meeting for the choice of state and county officers, 
representatives in congress, or electors of president and 
vice-president, printed blanks for the return of votes for 
said officers, with such instructions as may be deemed nec- 
essary or useful ; which blanks shall be used by said clerks 
in making said returns. — Gen. Sts. p. 59, c. 13, s. 3. 

11. One railroad commissioner shall be elected in each 
year on the second Tuesday of March, in the same manner 
the governor is elected. — Gen. Sts. p. 297, c. 143, ss. 1, 2. 

For form of returns see ss. 2, 3, ante. 

12. Representatives to the general court. A meeting 
for the election of representatives to the general court, in 
towns not classed, shall be holden on the second Tuesday of 
March, annually ; but if the election of the requisite number 
shall not be effected on that day, the meeting may be ad- 
journed to, and the election of the number deficient made 
on, the following day, but not afterward. — Gen. Sts. p. 86, 
c. 32, s. 1. 

13. The certificate of election shall be made out, cer- 
tified and signed in the same manner as the returns of 
votes for governor ; and the town clerk shall also certify 
that the check-list was duly posted and used during the 
balloting on which such representative was chosen, the 
number of ratable polls in such town, and the number of 
voters upon the check-list, as corrected on the day of such 
annual meeting. — id. s. 2. 

For form of returns see s. 3, ante. The form of a cer- 
tificate thereon may be as follows : 

I also certify that the check-list was duly posted up and 
used during the balloting on which said representative was 
chosen, that the number of ratable polls in said town at 

the time of said election was , and that the 

number of voters upon the check-list on the day of such 
annual meeting was . 

, Town Clerk. 



68 STATE AND COUNTY OFFICERS. 

14. Eatable polls. In determining the number of rep- 
resentatives to which any town is entitled, every male in- 
habitant twenty-one years of age and upward, who is a 
legal voter in such town, or, not being a legal voter, has 
resided therein twelve months next preceding the election 
at which such representative or representatives are to be 
chosen, or who has been taxed and has paid a poll-tax 
within such town during the year preceding such election, 
and resided therein six months next preceding the same 
election, shall be considered a ratable poll ; and the names 
of such persons only (1) shall be considered, in certifying 
the number of ratable polls in such town upon the check- 
list used in balloting for representatives. — Gen. Sts. p. 87 , 
c. 32, s. 3. 

(1). See 8 R. 573, Digest, p. 164, (b). 

15. Towns specially authorized. Each of the follow- 
ing towns, not having the constitutional number of ratable 
polls, may send a representative to the general court, until 
otherwise ordered : namely, Atkinson, East Kingston, 
Greenland, Newington, Newton, Hampton Falls, South 
Hampton, Madbury, Middleton, Centre Harbor, Brookfield, 
Allenstown, Brookline, Litchfield, Sharon, Temple, Gilsum, 
Roxbury, Sullivan, Surry, Langdon, Benton, Hebron, 
Orange, Dalton, Albany, Bennington, Chatham, Franconia, 
Gosport, Jackson, Sandown, Windsor, Fremont, Pittsburg, 
and Clarksville. — id. s. 5. 

16. Clerk of to certify. The clerk of every town 
specially authorized to send a representative to the general 
court, shall note on the margin of the certificate of elec- 
tion the time when such authority was given. — id. s. 4. 

17. Classed towns. The following towns and places, 
not having the constitutional number of ratable polls each, 
are classed, for the election of representatives to the gen- 
eral court, in the following manner, and each class may 
send one representative, annually : namely, Carroll, Nash 
and Sawyer's Location, Hart's Location, and Crawford's 
Grant ; Jackson and Pinkham's Grant ; Woodstock and 
Lincoln ; Ellsworth and Waterville ; Errol, Millsfield, Dix- 
ville, Cambridge, and Wentworth's Location ; Stark and 
Hummer ; Berlin and Randolph ; Gorham, including Martin 
and Green's Grants. — Gen. Sts. p. 88, c. 32, s. 13. 



STATE AND COUNTY OFFICERS. 69 

18. Meetings in. A meeting for the election of repre- 
sentatives of classed towns may be holden on any day in 
March, except the second Tuesday thereof. — Gen. Sts. n. 
87, c. 32, s. 6. 

19. Warrant for. Such meeting shall be called by war- 
rant, under the hands and seal of the selectmen of the town 
wherein the meeting is by law to be holden, for that year, re- 
quiring the inhabitants of said classed towns qualified to 
vote for senator to meet at a certain place in said town, 
and at a certain hour therein mentioned, and expressing 
the purpose of such meeting. — id. s. 7. 

20. How posted. The selectmen shall post an attested 
copy of such warrant at some public place in each of said 
towns, fourteen days at least before such meeting, and re- 
turn such warrant, with their doings thereon ? at the time 
and place of said meeting. — id. s. 8. 

For forms of warrant and posting see chapter 7, p. 37, ante. 

21. Posting and regulating check-list in classed towns, 
see chapter 8, s. 12, p. 45, ante. 

22. Proceedings at the meeting. At such meeting a 
moderator shall be chosen, and said moderator, and the 
selectmen and clerk of the town wherein such meeting is 
holden, and the legal voters of each town present, shall 
have the same rights and powers, perform the same duties^ 
and be subject to the same liabilities and penalties, as if 
such meeting were a legal meeting of the inhabitants of 
one town only. — Gen. Sts. p. 88, c. 32, s. 12. 

23. Clerk pro tem. If there shall be no clerk of the 
town in which such meeting is to be holden, or in case of 
his absence, the legal voters of such town present shall 
choose a clerk of the meeting, who shall be sworn and 
shall perform the duties by law required of town clerks in 
town meetings, shall keep a fair record of the proceedings 
of the meeting, and shall transmit the same, duly certified, 
to the clerk of said town, as soon as one shall be elected, 
who shall record the same in the book of records of the 
town wherein such meeting is holden. — id. s. 13. 

24. Penalty for neglect. If any selectman or town 
clerk shall neglect to perform any duty required of him by 
this chapter, he shall be fined not exceeding fifty dollars. — 
id. s. 14. 

25. County officers. There shall be chosen, on the 



70 



CONTESTED ELECTIONS. 



second Tuesday of March, annually, by ballot, by the in- 
habitants of the several towns in each county qualified to 
vote for senators, a register of deeds and a county treas- 
urer, each of whom shall hold his office until some other 
person is chosen and qualified in his stead ; and a county 
commissioner, who shall hold his office for the term of three 
years. — Gen. Sts. p. 73, c. 23, s. 1. 

26. Eligibility for. No person is eligible to the office 
of register, treasurer, county commissioner, or clerk of any 
court, unless he is a resident of the county for which he is 
chosen. No person shall hold two of said offices at the 
same time, and the acceptance of one of said offices shall 
be a resignation of either of the others. — id. s. 2. 

£7. Return of votes. The returns of votes given in 
any town for each of said officers shall be made out, signed, 
certified and sealed by the clerk, in all respects as provided 
for the returns of votes for senator. — Gen. Sts. p. 74, c. 23, 3. 

For forms of returns see s. 3, p. 65, ante. 

28. To whom sent. Such returns shall be directed by 
the town clerk to the clerk of the supreme court for the 
county, with a superscription expressing the purport thereof ; 
and shall be transmitted by him to said clerk of court, on 
or before the first day of the sitting of the court, at the 
next stated term after the second Tuesday of March, in 
each year. — id. s. 4. 

CHAPTEE XIII. 



CONTESTED ELECTIONS. 



Contestant, expenses of, s. 6. 
Depositions and caption, ss. 2, 3. 
Evidence, when to be ready, s. 5. 
Member, when no pay to, ss. 6, 7. 
Notice in contested elections, s. 1. 
Petition, when presented, s. 4. 



Ratable polls, if insufficient, s. 7. 
Remonstrance, when presented, s. 4. 
Sitting member, pay of, ss. 6, 7, 
Time for presenting petition, etc. 
s.4. 
For furnishing evidence, s. 5. 



1. Notice to be given. When the election of any rep- 
resentative shall be contested, for any cause, the person 
intending to contest his right to a seat shall, on or before 
the twentieth day of April next succeeding his election, 
cause to be served on the person declared elected a notice 
in writing, briefly stating that his election, or right to his 
seat as such representative, will be contested, with the rea- 
sons for such contest. — Gen. Sts. p. 43, c. 2, s. 4. 



REPRESENTATIVES IN CONGRESS. 71 

2. Depositions. In any case of contested elections, dep- 
ositions may be taken as in civil causes. — id. s. 5. 

3. Caption of. The magistrate taking depositions shall 
prepare captions thereof, seal up the same, and direct the 
package to the clerk of the house, with a superscription 
stating the session at which the inclosed depositions are to 
be used, and in what case. — id. s. 6. 

4. Time for presenting petition or remonstrance. In 
any contested election case, the contestants shall not be 
entitled to a hearing, unless their remonstrance or petition 
shall be presented to the house before the second Wednes- 
day of the first session thereof; but for good cause shown, 
the house may thereafter entertain the same. — id. s. 7. 

5. Evidence, when to be ready. Neither party shall be 
entitled to have any evidence considered before the proper 
committee which is not in readiness to be submitted before 
the third Wednesday of the first session of the legislature ; 
but for good cause shown, such committee may receive and 
consider evidence subsequently offered. — id. s. 8. 

6. Compensation and expenses. The party failing to 
sustain his right to a seat shall not be entitled to any com- 
pensation for his services- as a member, or for any expenses 
he may have incurred in the contest therefor ; nor shall 
the contestants in any case be entitled to any remuneration 
for their expenses, unless successful in the contest. — id. s. 9. 

7. Eatable polls, if insufficient, etc. Any person 
attending at any session, as a member from any town that 
has not the requisite number of ratable polls and is not 
duly authorized by law to elect a representative, shall not 
be entitled to receive any compensation for his travel or 
attendance. — id. s. 10. 



CHAPTER XIV 



REPRESENTATIVES in congeess. 



Certificate of election, ss. 5, 8. 
Districts, for choice of. ss. 1, 2. 
Meetings, proceedings at, ss. 3, 7. 

Plurality elects, s.~5. 

Second meeting, ss. 6, 7. 



meetings 

Third meeting, s. 9. 
Plurality elects, s. 5. 
Return of votes, ss. 4, 7. 
Vacancies, s. 10. 



1. Districts. The state is divided into three districts 
for the purpose of choosing representatives in the congress 
of the United States, and each district is entitled to elect 
one representative. — Gen. Sts. p. 84, c. 30, s. 1. 



72 REPRESENTATIVES IN CONGRESS. 

2. Said districts are formed and limited in manner fol- 
lowing : to wit, the counties of Rockingham, Strafford, Bel- 
knap and Carroll constitute the first district ; the counties 
of Merrimack and Hillsborough constitute the second dis- 
trict ; the counties of Cheshire, Sullivan, Grafton and 
Coos constitute the third district. — id. s. 2. 

3. Meetings for the choice of representatives in congress 
shall be holden in each district on the second Tuesday of 
March, eighteen hundred and sixty-nine, and on the second 
Tuesday in March in every second year thereafter. — id. s. 3. 

4. How warned, etc. The meetings in the several 
towns in each district shall be warned and governed, and 
the returns of votes for representatives shall be made out, 
signed, certified, sealed, directed, transmitted, receipted 
for, examined and counted, at the same time and in the 
same manner as provided for the return of votes for sena- 
tors. — id. s. 4. 

For form of return, see s. 3, p. 65, ante. 

5. Plurality elects. Upon such examination and count, 
the person having the largest number of votes returned in 
any district shall be declared duly elected, and the governor 
shall forthwith transmit to the person so elected a certifi- 
cate of such election, under the seal of the state, signed by 
himself and countersigned by the secretary. — id. s. 5. 

6. If no choice. If two or more persons, at any elec- 
tion of representatives to congress, shall, in any district, 
receive the largest and an equal number of votes, so that 
no choice be made, the governor, with advice of the council, 
shall cause precepts to be issued to the selectmen of the 
several towns within such district for another election, re- 
quiring them to warn meetings to be holden at the time 
specified in such precepts for the choice of a represent- 
ative. — id. s. 6. 

7. Second meeting. The votes given in at any such 
meeting shall be received, sorted, counted, declared, re- 
corded and certified, and the returns thereof made out, 
signed, certified, sealed and directed, in the manner here- 
inbefore prescribed, and the clerk shall transmit the same 
to the office of the secretary of state within fifteen days 
after such meeting. — id. s. 7. 

8. Certificate of election. The secretary, as soon as 
may be, shall lay all such returns before the governor and 



ELECTORS OP PRESIDENT AND VICE-PRESIDENT. 73 

council, and the votes shall be examined and counted, and 
the election of the person having the largest number of 
votes declared and certified, and the certificate thereof 
made out and transmitted in the manner hereinbefore di- 
rected. — Gen. Sts. p. 85, c. 30, s. 8. See ante, s. 4. 

9. Third meeting, etc. If upon such second balloting 
two or more persons shall have the largest and an equal 
number of votes in any district, so that no choice be made 
therein, the governor, "with advice of the council, shall 
forthwith cause new precepts to be issued as aforesaid, di- 
recting another meeting to be warned and holden to fill 
such vacancy ; and the same proceedings shall be again had 
as are hereinbefore provided ; and so from time to time, so 
long as may be necessary, until some one shall have the 
largest number of votes. — id. s. 9. 

10. Vacancies. If any vacancy in the representation in 
congress shall occur, by death, resignation, or otherwise, 
the governor, with advice of the council, shall forthwith 
cause precepts to be issued to the selectmen of the towns 
within the district where such vacancy exists, for an elec- 
tion to fill such vacancy ; and similar proceedings in all 
respects shall be had therein as are provided in the preced- 
ing sections of this chapter ; and the ballotings in such dis- 
tricts shall be continued until some person shall have the 
largest number of votes given in and returned. — id. s. 10. 



CHAPTER XV 



ELECTORS OF PRESIDENT AND VICE-PRESIDENT. 



Counting yotes by governor, etc., 

s. 4. 
Electors, duties of, ss. 6, 8. 
Governor and Council, duties of, ss. 4, 

7. 
Meeting for choice of electors, s. 1. 



Meeting of electors, ss. 6, 8. 

Notice to electors, s. 5. 

Return of votes, and receipt for, ss. 2, 3. 

Secretary of state, duties of, s. 4. 

Vacancies, Low filled, s. 7. 

Voting for president, time of, s. 8. 



1. Meetings for the choice of electors of president 
and vice-president shall be holden on the Tuesday follow- 
ing the first Monday in November, one thousand eight hun- 
dred and sixty-eight, and on the Tuesday following the first 
Monday in November in every fourth year thereafter ; and 
the governor shall seasonably issue precepts to the several 
towns, directing them to warn and hold meetings at the 



74 ELECTORS OF PRESIDENT AND VICE-PRESIDENT. 

time and for the purpose aforesaid. — Gen. Sts. p. 85, c. 31, 
s. 1. 

2. The returns of votes for electors shall be made out, 
signed, certified, sealed and directed, in the manner pro- 
vided for the returns of votes for senator ; and the town 
clerks shall transmit the same to the office of the secretary 
of state five days at least before the last Wednesday but 
one of the same month. — id. s. 2. 

The record of the town meeting may be made up as in 
chapter 11, p. 61, and the return of votes as in s. 3, chap- 
ter 12, p. 65, ante. 

3. Receipts for votes. The secretary by whom such 
returns of votes shall be received shall forward by mail to 
the town clerks receipts therefor. — id. s. 3. 

4. Counting votes by governor, etc. The secretary 
shall, on the day following the last Wednesday but one of 
November, lay the returns of votes for electors of president 
and vice-president before the governor and council, to be 
by them examined and counted. The requisite number of 
persons who shall have the largest number of votes returned 
shall be declared duly chosen electors. — id. s. 4. 

5. Notice to electors. The governor shall cause the 
several persons who may be chosen electors to be notified 
forthwith of their election, and request their attendance at 
the state-house in Concord, on Tuesday next preceding the 
first Wednesday of December then. next, at ten o'clock in 
the forenoon. — id. s. 5. 

6. Meeting of electors. The electors chosen shall 
meet at the state-house in Concord, on said Tuesday, and by 
twelve o'clock at mid-day on said day give notice to the 
governor and council of the number of electors present who 
accept the office. — id. s. 5. 

7. Vacancies, how filled. If the requisite number of 
electors are not present, or do not accept, or if the requisite 
number of electors shall not be chosen by reason of two or 
more persons having an equal number of votes, the electors 
present who do accept, in presence of the governor and 
council, shall forthwith choose by ballot the number want- 
ing to complete the board. — id. s. 7. 

8. Voting for president, etc. The electors shall give 
their votes for president and vice-president of the United 
States, at Concord, on said first Wednesday of December, 
and shall proceed therein according to law. — id. s. 8. 



TITLE III. 



TOWN OFFICERS. 



CHAPTER 


XVI. 


CHAPTER 


XVIL- 


CHAPTER 


XVIII. 


CHAPTER 


XIX. 


CHAPTER 


XX. 


CHAPTER 


XXI. 


CHAPTER 


XXII. 


CHAPTER 


XXIII 


CHAPTER 


XXIV. 


CHAPTER 


XXV. 


CHAPTER 


XXVI. 


CHAPTER 


XXVII 


CHAPTER 


XXVIII. 



CHAPTER XXIX.- 



-Election, Oath and Duties of Town Offi- 
cers . 

-Appointments, Removals and Vacancies. 

-Hearings before ToAvn Officers. 

-Drawing Jurors. 

-Fences and Common Fields. 

-Strays and Lost Goods. 

-Pounds, and Impounding. 

-Floating Timber. 

-Mills and their Repairs. 

-Marriages, Births and Deaths. 

-Surveyors and Inspectors of "Wood and 
Lumber. 

-"Weights and Measures. 

-Peddlers, Transient Traders, and Dealers 
in Old Metals. 

-Wild Animals, Dogs and Sheep. 



CHAPTER XVI 



ELECTION, OATH, AND DUTIES* OF TOWN OFFICERS. 



Agents, choice of. and duties, ss. 2, 19. 
Ballot, officers chosen by, s. 1. 
Bond by town officer, form of, s. 23. 
Case, action of against officers, s. 30. 
City marshal, does not hold oYer, s. 5 ( 1). 
Clerk of the market, s. 2. 
Collectors, choice of and duties, ss. 2, 

21, 23. 
Constables, choice of and duties, ss. 2, 

23, 26. 
Liability of, ss. 21, 30, 30 (1). 



Creditor's bill, copy of filed with clerk, 

s. 43. 
Culler of stayes, s. 2. 
Exemption from serying, s. 18. 
Fesce-yiewers, choice of, s. 2. 
Filing papers by clerk, s. H. 
Firewards, choice of, s. 2. 
Fishing-wardens, choice of. s. 2. 
Health officers, choice of, s. 2. 
Hogreeyes, choice of, s. 2. 
Holding oyep., by officers, s. 5, s. 5 (1). 



* Such duties only as are not treated of elsewhere. 



76 



ELECTION AND DUTIES OF TOWN OFFICERS. 



Liquor cases, selectmen to prosecute, s. 

35. 
Lists of stockholders, filing of, s. 45. 
Measurers of wood, choice of, s. 2. 
Moderator, choice of, s. 1. 
Mortgages, record of, ss. 46, 47. 
Oath of office, ss. 6-14. 
Overseers of the poor, choice of, s. 2. 
Penalties, upon clerk, s. 37. 

For neglect to take oath, ss. 9, 14-16. 

Upon constable, ss. 13, 30. 

Upon selectmen, s. 36. 

Upon railroad clerk, &c, s. 45. 

Suits for, by clerk, s. 45. 

By selectmen, s. 34. 
Pound-keeper, choice of, s. 2. 
Powder magazine, keeper of, s. 4. 
Prudential affairs, meaning of, s. 

31(1). 
Railroad, stock in, s. 45. 

Assessment of damages, ss. 32, 48. 



Record, of choice of officers, s. 1 (1). 

Of official oath, ss. 16, 17. 
Rewards, offers of by selectmen, s. 33. 
School Committee, choice of, s. 1. 
Sealehs of weights and measures, 

s. 2. 
Selectmen, choice of and duties, ss. 1, 
31-35. 

Authority of, s. 31, s. 31 (1). 

Liability of, s. 36. 
Stock in corporations, lists of, s. 45. 
Surveyors of highways, choice of, s. 2. 
Surveyors of lumber, choice of, s. 2. 
Tenure of office, s. 5, 
Town clerk, choice of and duties, ss. 1, 
37-49. 

Fees of, ss. 40, 41. 
Town treasurer, choice of and duties, 

ss. 2, 49, 50. 
Void process, no protection, s. 30 (1). 
Warrant, to constable to notify, ss. 10, 11. 



1. Officers, chosen by ballot. Every town at its an- 
nual meeting is required to choose by ballot and major 
vote (1) a town clerk and three or more selectmen, not 
exceeding nine, and may thus choose assessors (the num- 
ber not limited), and a school committee " of so many per- 



sons as they see fit."- 
169, c. 81, s. 1. 



■Gen. Sts. p. 97, c. 37, ss. 



1, 2, 3, 



(1) The record of the town meeting must show both. 
39, s. 74. 



-28 R. 419; 39 E. 275; Digest, p. 



2. By major vote only. Any town may choose by ma- 
jor vote a treasurer, one or more agents, overseers of the 
poor, firewards, health officers, one or more constables, one 
or more collectors of taxes, surveyors of highways, fence 
viewers, a clerk of the market, sealers of weights and meas- 
ures, hogreeves, a pound-keeper, measurers of wood, sur- 
veyors of lumber, cullers of staves, and, if interested in the 
execution of the laws for the protection of fish, one or more 
fishing-wardens (1), " and every other officer who may be 
directed by law to be chosen, and such other officers as they 
may judge necessary for managing their affairs, who shall 
severally perform the duties prescribed by law." — Gen. Sts. 
p. 97, c. 37, ss. 4, 7. 

(1) Laws of 1868, p. 132, c. 1, s. 60. 

3. Moderator. See ss. 6-9, chapter 10, p. 52, ante. 

4. Keeper of powder-magazine. When any magazine 
for gunpowder shall be provided by any town for public use, 
a keeper of such magazine shall be annually chosen, who 
shall receive into and deliver out of said magazine all gun- 



ELECTION AND DUTIES OF TOWN OFFICERS. 77 

powder brought or deposited there, and account for the 
same ; and he shall receive for his services at the rate of 
twenty cents for a hundred pounds, for all quantities above 
ten pounds, and for less quantities one cent a pound. — Gen. 
Sts. p. 97, c. 37, s. 8. 

5. Holding over. All town officers shall continue in 
office until the next annual meeting for the choice of town 
officers, and until others shall be chosen and sworn in their 
stead (1), except in cases where the law shall otherwise 
direct.— Gen. Sts. p. 97, c. 37, s. 9. 

(1) Held not to apply to a city marshal. — 29 E,. 213 ; Digest, p. 149, s. 7. 

6. Oath of office. Every town officer shall take the 
oath of office by law prescribed, before the moderator, town 
clerk, one of the selectmen, or a justice of the peace, who 
are hereby authorized to administer such oath. — Gen. Sts. 
p. 98, c. 38, s. 1. 

7. The form of oath to be administered to town officers 
shall be : — 

" You do solemnly swear that you will faithfully and 
impartially discharge and perform all the duties incumbent 
on you as a , according to the best of your abili- 

ties, agreeably to the rules and regulations of the constitu- 
tion and laws of the state of New Hampshire. So help you 
God."— id. s. 2. 

8. In open meeting. Any person chosen to any office 
may be notified by the moderator, town clerk, or one of the 
selectmen, in open meeting, to take the oath of office ; 
and such person, if present, shall immediately, in open 
meeting, take such oath or declare his refusal. — id. s. 3. 

9. Penalty for neglect to take oath. Any person 
so chosen and notified, not exempt from serving in such 
office, who shall refuse or neglect for one hour to take such 
oath, shall be fined five dollars, one half for the use of the 
town, the other half for the use of the county. — id. 

10. Constable to notify to take oath. The town clerk 
shall forthwith, after the choice of any town officers, by a 
precept under his hand, direct a constable to notify the per- 
sons so chosen, whose name and the offices to which they 
are chosen shall be designated therein, to appear before 
him within six days from the day of the notice given, and 



78 ELECTION AND DUTIES OF TOWN OFFICERS. 

take the oath by law prescribed ; and the constable shall, 
within four days, give personal notice to the persons therein 
named, or leave a notice in writing at the abode of each, 
and make return of such precept and his doings therein, 
to such town-clerk within six days. — id. s. 4. 
11. The form of the warrant may be : 

The State of New Hampshire. 
To , a constable in the town of 



Whereas, at the annual meeting of said town on the — 
day of , 1869, was chosen [state the of- 
fice] , and were chosen [state the 

office] : 

In the name of said state you are required, within four 
days from the date hereof, to give personal notice to each 
of the persons above named, or leave a notice, in writing, 
at his abode, to appear before me, town clerk of said town, 
within six days from the day of such notice given, and 
take the oath of office by law prescribed. 

Hereof fail not; and make return of this precept, and 
your doings thereon, within six days from the date hereof 
to me, the said town clerk. 

Given under my hand at said , this — day of , 

18—. 

, Town Clerk of . 

12. The form of the return of the notice may be : 

A , 18 — . Pursuant to the within precept, I have 

notified , within named, by reading to each of 

them said precept, and I have notified , within 

named, by leaving at the abode of each a true and attested 
copy of said precept. 

, Constable of . 

13. Neglect to notify, penalty. Any constable neg- 
lecting his duty in any of the foregoing particulars shall 
be fined five dollars, one half for the use of the town, the 
other half for the use of the county. — id. s. 5. 

11. Neglect to take oath, penalty. Every person so 
chosen and notified, not by law exempt from serving, who 
shall neglect, for six days after personal notice, or after 
notice left at his abode, or after his return, in case he was 



ELECTION AND DUTIES OF TOWN OFFICERS. 79 

absent when such notice was left, to appear before said 
town clerk and take such oath, shall be fined five dollars, 
to be appropriated as in the preceding section. — id. s. 6. 

15. If before selectman or justice. Any person so 
chosen and notified, who shall take the oath of office be- 
fore one of the selectmen or a justice of the peace, and file 
a certificate thereof with the town clerk within said six 
days, shall be exempted from such penalty. — id. s. 7. See 
s. 17. 

16. Record of oath. The town clerk shall make a re- 
cord of every oath of a town officer taken in open town 
meeting at the time of the election, and of every such oath 
taken before him at any other time and place, the import 
of which record may be that the officer took the oath of 
office prescribed by law ; and he shall record and keep on 
file every certificate filed with him pursuant to the preced- 
ing section. — id. s. 8. 

17. The form of a certificate under s. 15, a?ite, may 
be: 

H ss. , 18 — . Then appeared , high- 
way surveyor of the town of , and took the oath of 

office by law prescribed. 

Before me, , Justice of the Peace. 

And a record of the taking before the clerk : 

N 18—. Then appeared , fence 

viewer of the town of , and took the oath of of- 
fice by law prescribed. 

Before me, , Town Clerk. 

18. Exemption from serving-. No person shall be 
obliged to serve in any town office two years successively ; 
nor shall any person in any case be compelled to serve as 
collector of taxes. — Gen. Sts. p. 99, c. 38, s. 9. 

19. Agents, it has been held, may be chosen under an 
article " to choose all necessary town officers," (24 R. 208 ; 
Digest, p. 608, s. 59), but we have preferred to have the 
warrant embrace them in terms. See s. 14, p. 37, ante. 

Their authority is special and limited to the business for 
which they are chosen.— 11 R. 424; 42 R. 125; 46 R. 
411 ; 9 R. 263 ; Digest, p. 21, ss. 58, 59, p. 22, s. 81, p. 
608, s. 58 ; s. 5 (a), p. 9, ante. 



80 ELECTION AND DUTIES OF TOWN OFFICERS. 

20. And there must also have been an article in the war- 
rant in relation to that business. — 46 R. 411, Digest, p. 608, 
s. 58. 

21. Collectors. See post, chapter 34. 

22. Constables are not appointed by the selectmen ex- 
cept in case of a vacancy. For form of appointment, see 
s. 12, p. 90, post. 

23. To give bond. Every collector or constable shall, 
within six days after his election or appointment, give bond 
with sufficient sureties to the acceptance of the town or se 
lectmen, for the faithful performance of the duties of his 
office ; and in default thereof the office shall become va- 
cant. — Gen. Sts. p. 99, c. 39, s. 4. 

Constables' bonds shall be in such sum as may be re- 
quired by the selectmen, shall be approved by them, and 
deposited with the town clerk. — Gen. Sts. p. 403, c. 198, s. 3. 

The form of the bond may be as follows : 

Know all men by these presents, that we, , as 

principal, and as sureties, are indebted and firmly 

bound unto the town of , in the sum of 

dollars, to the payment whereof we bind ourselves and our 
heirs by these presents. 

Sealed with our seals and dated this — day of ,18 — . 

The condition of this obligation is such that whereas the 

said has been chosen [or appointed] a for 

said town, for the year 18 — ; now if the said shall 

well and faithfully perform all the duties of his said office, 
then this obligation shall be void ; otherwise to remain in 
full force. 

Signed, sealed and delivered 

in presence of us, 

(Seal.) 

: (Seal.) 

(Seal.) 

Approved, this day of , 18 — . 

ZZZZ ZZIZZ ( Selectmen. 

24. To serve precepts. Constables shall serve and re- 
turn writs and other precepts to them directed, and shall 
have similar powers and be subject to similar liabilities in 
relation thereto as sheriffs. — Gen. Sts. p. 401, c. 197, s. 5. 



ELECTION AND DUTIES OF TOWN OFFICERS. 81 

Any person injured by the neglect or misconduct of a 
constable, and having recovered judgment against him, 
may commence a suit upon his bond in the name of the 
town.— Gen. Sts. pp. 403-4, c. 198, ss. 6-12. 

Constables are liable to a penalty of fifty dollars for neg- 
lect to serve any precept, either upon tender of his fees 
or when the warrant is indorsed by the attorney-general 
or the solicitor. — Gen. Sts. p. 401, c. 197, ss. 6, 7. 

If a constable neglect to pay over money collected on 
execution he is liable to five times the lawful interest ; but 
in case he has been trusteed such liability attaches only from 
the time of the tender of a bond of idemnity. — Gen. Sts. 
p.402,c. 197, ss. 17, 18. 

25. Not disqualified, when. No sheriff, deputy sheriff, 
coroner or constable is disqualified to serve any writ or 
other precept in which a town or other corporation is a 
party by reason of his being a citizen of such town or mem- 
ber of such corporation. — Gen. Sts. p. 401, c. 197, s. 6. 

26. He may require suitable aid in the execution of his 
office ; and any person who neglects or refuses to give such 
aid, when so required, shall be fined not exceeding twenty 
dollars.— id. s. 8, p. 481, s. 2. 

27. Upon view of any crime or breach of the peace or 
offence against the police of towns, he may arrest the of- 
fender, and forthwith carry him before the proper court or 
justice to answer for the offence. — Gen. Sts. p. 481, c. 236, 
s. 3. 

28. Other duties. For duties of constables in warning 
town meetings, see ss. 6, 9, 11, p. 35-6, mite ; and at 
town meetings, see ss. 10, 11, p. 57 ; ss. 10-12, ante. 

29. Fees. Constables are entitled to the same fees as 
sheriffs in like cases, and for summoning and attending the 
jury on a coroner's inquest, sixty-seven cents a day and 
necessary expenses. — Gen. Sts. p. 550, c. 272, ss. 20, 23. 

30. Liability of constables. Sheriffs, constables and 
other officers liable for default or misconduct in office, 
shall be holden to answer for the damages in an action on 
the case, and in no (1) other form. — Gen. Sts. p. 407, c. 
201, s. 6. 

(1) This is held to apply only to suits by parties having an interest in the process, or 
acquiring rights under it, and not to actions by the debtor, or by third persons for 
acts not warranted by the process.— 18 R. 387; Digest, p. 615, ss. 73, 76. 

Nor is an officer protected by this statute if his warrant is void upon its face. — Di- 
gest, p. 500, ss. 57-6U. 



82 ELECTION AND DUTIES OF TOWN OFFICERS. 

31. Selectmen are to " manage all the prudential (1) 
affairs of the town, and perform all the duties by law pre- 
scribed." A majority of the board are competent to act in 
all cases. — Gen. Sts. p. 97, c. 37, s. 2. 

(1) Selectmen have not a general authority to bind the town.— 7 R. 302, Digest, p. 
6i0, ss. 108, 111. 

" Pecuniary matters as well as other subjects of internal police may well be em- 
braced under a strict definition of the word prudential." — Per Woodbury, J., 2 R. 252. 

They are special agents empowered to do only such acts as are required to meet the 
exigencies of ordinary town business. — 13 Gray,' 320; 2 R. 253. 

They may appoint an agent where the business calls for one, as in building a road — 
24 R. 208, Digest, p. 610, s. 117; and employ counsel— 14 Maine, 20; 19 Conn. 331; and 
give an indemnity to a collector— 12 P. 278, Digest, 610, ss. 115, 116; and pay debts of 
the town even from their own funds, and call upon the town to repay, provided the 
debts are of a character to require immediate payment — 2 R. 251, 254; and defend or 
prosecute suits when necessary. — 19 Conn. 331. 

They cannot refer a controversy so as to bind the town— 22 R. 567 ; 5 Conn. 367; 8 
Greenl. 315; but held otherwise under a statute authorizing selectmen " to audit and 
adjust " claims against the town.— 22 Vt. 558. 

They cannot release a person in order to make him a witness. — 22 R. 559; 3 Vt. 461. 

They have no general authority to adjust controversies or suits of the town, and 
thereby bind it to the payment of money — 2 R. 352, 355; 2 Day, 323; 5 Conn. 367; 8 
Gteenl. 315; but see 36 Vt. 349, 351; Digest, p. 98, s. 9, p. 611, s. 127. 

And hence if the sum to be paid is considerable, the matter should ordinarily be re- 
ferred to the town. But there are cases, particularly of injuries upon highways, where 
a sound discretion would require the selectmen to adjust the matter promptly, by the 
payment of a moderate sum, and trust to a ratification. See also, ante, p. 9, s. 5 (a) (b) 
(c)'(d) (e); 15 R. 468, 473; Digest, p. 610 (b) 1. 

Their acts within the scope of their authority are evidence as admissions by the 
town when thev amount to that.— Digest, p. 331, s. 120; ante, p. 9, s. 5 (a); 36 Vt. 580, 
591 ; 9 Allen, 207 ; 7 Allen, 284. 

(2) The assent of the other selectmen to acts of a merely formal character, and re- 
quiring no deliberation, may be presumed. — 33 R. 571 ; Digest, p. 610, s. 114. 

One selectman cannot sign the name of another in his absence, to any note, order, or 
contract, though he may have given him a general authority to do so.— 10 R. 36; 7 R. 
305 ; Digest, p. 23 (f ). 

Two selectmen are presumed to be a majority of the board till the contrary is shown. 
—6 R. 302; Digest, p. 329, s. 71; 48 Maine, 353. 

32. Railroad damages in any town are assessed by the 
railroad commissioners and the selectmen as a joint board. 
—Gen. Sts. p. 305, c. 146, s. 14. 

33. May offer rewards. The mayor and city council 
of any city and the selectmen of any town are authorized, 
whenever in their opinion the public good requires it, to 
offer and pay from the treasury of such city or town a suit- 
able reward, not exceeding three hundred dollars in any 
one case, to any person who shall, in consequence of such 
offer, apprehend and secure any person or persons charged 
with having committed any capital or other high crime. — 
Gen. Sts. p. 496, c. 245, s. 1. 

34. To sue for penalties. When any penalty or forfeit- 
ure or any part thereof is given to any town, the selectmen 
may sue therefor in the name of the town, and shall defray 
the expenses of the prosecution, and the selectmen may 
remit such penalty or forfeiture. — Gen. Sts. p. 503, c. 248, 
s. 12. 



ELECTION AND DUTIES OF TOWN OFFICERS. 83 

35. To prosecute in liquor cases. By s. 21, c. 99, Gen. 
Sts. (p. 210), selectmen are required to prosecute, at the 
expense of the town, every person guilty of a violation of 
any previous section of that chapter of which they can obtain 
reasonable proof. 

36. Liability of selectmen. They are liable in damages 
to the town for gross neglect of duty or misfeasance — 
Digest, p. 611, s. 133 ; and to indictment for a willful neg- 
lect of duty, although a writ of mandamus is sometimes a 
concurrent remedy. — Digest, p. 226, xi. 

An illegal or unauthorized vote of the town imposes no 
duty and affords no protection. — 34 Maine, 575 ; 42 P. 102. 

They are not responsible for committing the taxes to a 
collector, de facto — 7 R. 113 ; nor for the regularity of the 
proceedings of a surveyor of highways in collecting taxes — 
3 R. 513 ; nor for the misconduct of collectors or other 
officers to whom warrants are committed. — id. 

37. The town clerk shall record all votes passed by the 
town while he remains in office, and discharge all the duties 
of the office according to law. — Gen. Sts. p. 96, c. 37, s. 1. 
Penalty for a false record, see ante, p. 64, s. 3. 

38. Pro tem. If the town clerk shall be absent from 
any town meeting, a town clerk pro tempore shall be chosen, 
by ballot and by major vote of the legal voters present and 
voting therefor, who shall be sworn and perform all the 
duties of town clerk for the time being. — Gen. Sts. p. 100, 
c. 39, s. 13. 

39. Appointment of. The selectmen " without delay " 
shall appoint a town clerk whenever a vacancy occurs in 
that office. — id. s. 6. 

40. Fees of town clerks. Town clerks are entitled to 
receive — 

For each page of two hundred and twenty-four words 
copied or recorded, seventeen cents. 

For any part less than a page, twelve cents. 

For recording notice of a stray, ten cents ; and twenty- 
five cents for the appraisal. 

For recording peddler's certificate, twenty-five cents. 

For a certificate on a deed of the time and place of re- 
cording, and for every certificate by him made, eight cents. 

For examining the records at the request of any person, 
for each hour necessarily spent therein, twenty-five cents. 



84 ELECTION AND DUTIES OF TOWN OFFICERS. 

For discharging a mortgage on record, twenty-five cents ; 
and for recording and making return of each birth and 
death, twenty-five cents. — Gen. Sts. p. 225, c. 108, s. 2, p. 
273, c. 130, s. 13, p. 333, c. 142, s. 3, pp. 548, 550, c. 272, 
ss. 3, 17, 18. Upon an attachment, see s. 42, post. 

41. Attachments and liens. The town clerk is required 
to certify, upon every copy of a writ of attachment left at his 
dwelling-house, the time when it was received, and keep the 
copy on file. He is also required to keep a general index, 
in which he shall enter, at the time of receiving the copy of 
the writ on which the attachment is made, the day of re- 
ceiving the same, the court to which the writ is returnable, 
and the names of the plaintiff and defendant in the suit, 
with the names of the defendants alphabetically arranged ; 
which index shall at all times be open to public inspection. — 
Gen. Sts. p. 416, c. 205, ss. 4, 5. 

Upon a sale by the holder of a lien upon personal prop- 
erty, the proceedings are to be recorded. — Gen. Sts. p. 261, 
c. 125, s. 8. 

The form of a certificate upon the copy may be : 

Received , 18 — , at — minutes past — o'clock in 

the noon. 

Attest : , Town Clerk. 

The officer making such attachment shall, at the time of 
making the same, pay to the town clerk the sum of twenty 
cents, which shall be in full for his services in receiving 
and filing the copy, certifying the time of receiving the 
same, and entering the attachment upon said index. — 
id. s. 6. 

42. Attesting records, Every record by a town clerk 
should be signed by him, and an attestation beyond this 
may be necessary ; but the precise form is not material. 

(a) The record of a meeting may be attested thus : 
A true record. 

Attest : , Town Clerk. 

(b) The record of a mortgage may be attested thus : 
Received , 18 — , at minutes past — o'clock in 

the noon, and recorded. 

A true record. 

Attest : — , Town Clerk. 



ELECTION AND DUTIES OP TOWN OFFICERS. 85 

(c) The record of any other instrument, if the hour 
when it is received is not material, may be attested thus : 

Received , 18 — , and recorded. 

A true record. 

Attest : , Town Clerk. 

(d) Some proceedings take effect only from the time they 
are recorded, and should therefore be recorded as soon as 
received. The form of attestation may be : 

Received and recorded this day of , 18 — , 

at minutes past — o'clock, in the noon. 

A true record. 

Attest : , Town Clerk. 

(e) And in any case if the instrument is recorded the day 
it is received, but the precise hour is not material : 

Received and recorded , 18 — , 

A true record. 

Attest : , Town Clerk. 

43. Creditor's bill. When a bill is filed under s. 3, c. 
190, Gen. Sts. (p. 389), the plaintiff may cause a certified 
copy thereof, and of the writ of subpoena issued thereon, to 
be filed in the office of the clerk of the town in which any de- 
fendant resides ; and the names of the parties, the time 
of filing and the court in which the bill is pending shall be 
entered by said clerk upon the index of attachments, as 
in the case of an attachment of real estate. 

A lien upon real estate in such a case is obtained by filing 
the certified copy in the office of the clerk of the town in 
which the real estate is situate, instead of the town in which 
the defendant resides. — Gen. Sts. p. 389, c. 190, ss. 5, 6. 

44. Filing papers. This is sometimes necessary and 
always advisable. The form may be : 

Received , 18 — [state the time of day, when 

material] , and recorded (1). 

Attest : , Town Clerk. 

(1) If such was the fact. 

Such a certificate is evidence. — 17 R. 429 ; Digest, p, 
600, ss. 107, 108. 

45. Lists of stockholders. The treasurer of every rail- 



86 ELECTION AND DUTIES OF TOWN OFFICERS. 

road corporation, and the clerk of every other dividend-pay- 
ing corporation, except banks, until its capital stock is fully 
paid in and a certificate thereof filed and recorded, shall 
annually, in the month of May, cause to be filed and re- 
corded in the office of the clerk of the town or city in which 
such corporation has its principal place of business, a list of 
the names and places of residence of all its stockholders, 
certified under oath. 

Any person whose name shall be returned on such list 
shall be deemed a stockholder in such corporation, until he 
shall cause to be filed and recorded by such town clerk a 
certificate of the transfer of all his stock, the time of such 
transfer, and the names and places of residence of the per- 
sons to whom he sold, signed by the treasurer or clerk of 
the corporation, which certificate shall be made and de- 
livered to him by such treasurer or clerk upon request, at 
any time after such transfers are delivered to him for record. 

If any such treasurer or clerk shall neglect to make such 
return in the month of May annually, he shall forfeit for 
every such neglect fifty dollars, to any person who will sue 
for the same ; and it shall be the duty of such town or city 
clerk forthwith to commence a suit therefor. — Gen. Sts. p. 
283, c. 135, ss. 16, 17, 18. 

46. Mortgages of personal property are required to be 
recorded in the office of the clerk of the town in which the 
mortgager resides, at the time of making the sale, unless 
he resides out of the state at the time of making the mort- 
gage, when it is to be recorded in the town in which the 
property is situate. Incorporated places, which may be re- 
quired to pay any public tax, are towns. But when no 
clerk is chosen therein the mortgage may be recorded by 
the clerk of the town or place adjoining such unincorporated 
place paying the greatest proportion of the public tax. — 
Gen. Sts. p. 256, c. 123, ss. 2-5. 

47. Record of. Every town clerk shall keep a book of 
records for personal mortgages, at the expense of the town ; 
shall record therein any mortgage, transfer, consent, or dis- 
charge, or give a certified copy thereof when requested, on 
payment of the fees therefor ; shall certify the time when 
the same is received and recorded, and keep an alphabetical 
index of mortgageors and mortgagees ; which records and 
index shall be open to public inspection. — id. p. 257, s. 17. 



APPOINTMENTS, REMOVALS AND VACANCIES. 



87 



For form of filing and attesting, see ss. 42, 44, ante ; for 
fees, s. 40. 

48. Railroad damages. The town clerk is required to 
note upon the assessment the time when it is received, and 
keep it on file.— Gen. Sts. p. 306, c. 146, s. 26. For form, 
see s. 44, ante. 

49. Town treasurer to give bond. Every person elected 
or appointed to the office of town treasurer, shall, within 
six days after his election or appointment, and before enter- 
ing upon the duties of his office, give bond, with sufficient 
sureties, to the acceptance of the town or of the selectmen, 
for the faithful performance of his official duties ; and in 
default thereof the office shall become vacant. — Gen. Sts. p. 
97, c. 37, s. 9. 

The form of a treasurer's bond may be as in s. 23, ante. 
Appointment and removal of treasurer, see post pp. 89-90, 
ss. 8, 9, 10. 

50. Authority and liability op treasurer. He has as 
such no authority to make a demand upon the collector ; 
but he has authority to receive the money. — Digest, p. 263, 
s. 21. If he receive money as the money of the town, the 
town may ratify his act and maintain a suit against him for 
the money ; and it will be no defence that the money was 
borrowed by him and others, as selectmen, upon notes of 
the town without authority, or was the proceeds of taxes 
raised under an illegal vote. — 44 R. 414, Digest, p. 19, ss. 
36, 37. 

CHAPTER XVII. 



APPOINTMENTS, REMOVALS AND VACANCIES. 



Acceptance of resignation, ss. 3, 4. 
Appointment, form of, s. 12. 
Collector, appointment of, ss. 6, 12. 

Removal of, ss. 8, 9. 

To give bond, ss. 5, 8. 
Constable to give bond, s. 5. 
Insanity, cause of removal, ss. 1, 8. 
Notice before removal, s. 8. 
Official bond, neglect to give, ss. 5, 8. 

Liability upon, ss. 3, i, 5. 
Removal of Collector, ss. 8, 9, 10. 

Of treasurer, ss. 8, 9, 10. 
Resignation, wben complete, ss. 1, 3, 4. 



Selectmen may appoint, ss. 2, 3, 6. 

May remove, when, ss. 7, 8. 
Service of order of removal, s. 10. 
Towns, may fill vacancies, s. 1. 

May remove for insanity, s. 1. 
Treasurer, appointment of, ss. 6, 7, 12. 

Compensation of, s. 7. 

Form of appointment, s. 12. 

May be removed, ss. 8, 9. 

To give bond, ss. 5, 8. 
Vacancies, what are, s. 3. 
Vote, form of, in case of insanity, s. 1 (1). 
Warrant, articles in, s. 1. 



1. Towns may fill vacancies. When any person elect- 
ed to any town office shall not accept the same, or shall die. 



88 APPOINTMENTS, REMOVALS AND VACANCIES. 

resign, remove from town, or become insane in the judg- 
ment of the town (1), or when no annual meeting shall 
have been holden for the choice of town officers, or no choice 
has been made, or when there shall be a vacancy in any 
other way, the town may choose such officer at any legal 
meeting holden for that purpose, or at the adjournment of the 
annual meeting. — Gen. Sts. p. 99, c.39, s. 1. See s. 8, post. 

(1) A vote under this section, when insanity is the cause, may be as follows : " Voted 
that in the judgment of this town , treasurer of said town, has become in- 
sane, and that the town will now proceed to choose a treasurer in his stead." The 
vote should sdiow that it is " the judgment of the town " that the person has become 
insane. A vacancy may be filled under the usual article " to choose all necessary 
town officers." 

2. Selectmen may fill vacancies. By s. 6, c. 39, p. 100, 
Gen. Sts., " whenever a vacancy shall occur," in any town 
office other than that of selectman, the selectmen may appoint 
some suitable person to the place, and they are required to 
appoint a town clerk, " without delay," whenever there is a 
vacancy. 

Form of appointment, see s. 12, post. 

3. What is a vacancy. A vacancy to be filled by a new 
election or appointment shall be deemed to occur when any 
person elected to any town office shall not accept the same, or 
shall resign or die, or remove from the town, city, ward or dis- 
trict for which he may have been chosen, or shall be removed 
from office, or convicted of any crime, and in other cases 
provided by statute ; provided, that, in case any officer who 
has given an official bond shall so remove or resign, he and 
his sureties shall continue liable upon his bond for all acts 
under color of his office until he shall resign, and his res- 
ignation shall have been accepted by the town, selectmen, or 
others competent to accept the same. — Laws of 1868, c. 1, s. 7. 

A failure of the annual meeting does not cause a vacancy 
to be filled by the selectmen, nor a failure to elect at any 
meeting, except when the statute so provides. 

4. Resignation. The statute contemplates that a resig- 
nation is complete without an acceptance of the resigna- 
tion ; such acceptance is only necessary for the protection 
of the sureties. 

5. Neglect to give bond. By statute, every treasurer, 
constable and collector must give bond with sufficient sure- 
ties, to the acceptance of the town or selectmen, for the 
faithful performance of the duties of his office, within six 
days after his election or appointment, and " in default 



APPOINTMENTS, REMOVALS AND VACANCIES. 89 

thereof his office shall become vacant." — Gen. Sts. p. 97, c. 
37, s. 5 ; p. 99, c. 39, s. 4 ; p. 100, c. 39, ss. 7, 8. 

6. Upon a failure to choose a collector of taxes, the 
selectmen may appoint a collector or collectors, and they 
are required to appoint a treasurer " within fourteen days 
thereafter," if the town fail to elect one at their annual 
meeting.— Gen. Sts. p. 97, c. 37, s. 6 ; p. 99, c. 39, s. 3. 
They are also required to appoint a school committee before 
the 20th of April, if none have been chosen. — Gen. Sts. p. 
169, c. 81, s. 1. See s. 3, ante. 

7. Treasurer. Whenever the selectmen appoint a treas- 
urer they shall fix his compensation by a written contract ; 
he shall give bond for the faithful discharge of his duties to 
the satisfaction of the selectmen, and shall hold his office 
during the pleasure of the selectmen, or until another is 
chosen and sworn in his stead. — Laws of 1868, c. 1, s. 9. 
Section 7, c. 39, Gen. Sts., is repealed by the act of 1868. 

8. May be removed. The selectmen or mayor and 
aldermen may remove any collector or treasurer who, in 
their judgment, becomes insane, or otherwise incapacitated 
to discharge the duties of his office, or who neglects to give 
a new bond to their acceptance within ten days after a 
written notice to furnish such bond ; and they may proceed 
without a hearing, if they shall judge it necessary to do so, 
in any case under this section. — Laws of 1868, c. 1, s. 10. 

Notice for a hearing should be given, unless from insol- 
vency or other cause the public would be likely to be in- 
jured by the delay. 

Section 9, c. 39, Gen. Sts., is repealed. 

9. The form of removal may be : — 

To , collector [or treasurer] of the town 

of : 

Whereas, you have in our judgment become insane and 
thereby incapacitated to discharge its duties, you are hereby 
removed from your office of collector [or treasurer] . 

Witness our hands, this — day of , 18 — . 

) Selectmen 

\ of 



Another Form. 
To, &c, as above : 

Whereas, you in our judgment have, from habitual drunk- 
enness, become incapacitated, &c, &c, as above. 



90 APPOINTMENTS, REMOVALS AND VACANCIES. 

For neglect to give bond. 

To, &c, &G. 

Whereas, we, on the — day of last (more than ten 

days since), gave you a written notice to furnish a new 
bond to our acceptance, but you have neglected to furnish 
such bond, you are hereby removed from your said office of 
collector, &c. 

10. Service should be made upon the officer, or upon his 
guardian if one has been appointed, by giving him the origi- 
nal, or leaving it at his usual place of abode, and a copy be 
retained with an affidavit of service, and recorded by the 
town clerk. 

11. Powers, etc., of new officer. The powers, duties, 
and liabilities of every person appointed or chosen to fill a 
vacancy shall be the same as if he were chosen at the 
annual meeting, and he may take up the business apper- 
taining to his office where his immediate predecessor left it, 
and proceed to the full execution of the same. — Gen. Sts. 
p. 99, c. 39, ss. 2, 6-8 ; Laws of 1868, c. 1, s. 8. 

12. The form of an appointment upon a failure to elect 
may be : 

To , of the town of : 

Whereas said town have failed to elect a treasurer at 
their annual meeting, we, having confidence in your ability, 
discretion and integrity, hereby appoint you treasurer of 
said town for the year 18 — , and upon your taking the oath 
of office, and having this appointment and the certificate of 
said oath recorded in the records of said town, you shall 
have the powers, perform the duties and be subject to the 
liabilities of said office, and shall hold the same during the 
pleasure of the selectmen, or until another is chosen and 
sworn in your stead. 

Witness our hands this — day of , 18 — . 

) Selectmen 
I of 



The form of appointment to fill a vacancy may be : 
To , of the town of : 



Whereas there is a vacancy in the office of in 

said town for the year 18 — , we having confidence, &c, &c. 
Where the office is not held at the pleasure of the select- 



HEARING BEFORE TOWN OFFICERS. 



91 



men, the words in the above form, " during the pleasure of 
the selectmen," etc., should be omitted. 

The town clerk should certify upon the appointment the 
date of its record. For form, see ante, p. 85, s 44. 



CHAPTER XVIII. 



HEARING BEFORE TOWN OFFICERS. 



Adjournment of hearing, s. 4. 
Attesting copies, by whom, and form, s. 
2, s. 10 (1). 

Record by clerk, s. 14 (c). 
Certiorari* when resorted to, s. 8 (b). 
Committee, hearing before, s. 6. 
Decision, and effect of, ss. 6, 7. 

Form of, s. 14. 

To be recorded, ss. 5, 14 (c). 
Disqualification, what is, s. 8. 

Substitutes appointed, s. 9. 
Fence- viewers, hearing before, s. .6. 



Forms of proceedings, ss. 10-14. 
Hearing, requisites of, ss. 4 (a) (b). 
Highways, laying out, s. 1. 
Notice of hearing, ss. 2, 3, 11-14. 
School committee, hearing before, s. 6. 
School districts, cases affecting, ss. 1, 

13. 
Selectmen, hearings before, ss. 1-6. 
Town officers, hearings before, ss. 1-6. 
Towns, cases affecting, ss. 1, 12. 
Waiver of objections, s. 4 (b), s. 8 (e). 



1. Before selectmen. On petition to the selectmen for 
the laying out or altering of highways, for laying out school- 
house lots or other lands for public use, and generally for 
the purpose of deciding any question affecting the conflict- 
ing rights or claims of different persons, their proceedings 
shall be governed by the following rules. — Gen. Sts. p. 47b', 
c. 233, s. 1. 

2. Order of notice. They shall appoint a time and 
place of hearing, and order notice of such petition and 
hearing to be given to all persons whose property or rights 
may be directly affected by such proceeding, by giving to 
them or leaving at their abode an attested copy of such pe- 
tition and order, fourteen days before such hearing. — id. s. 
2. 

For forms, see ss. 10-13. 

3. Notice, how given. Notice shall be given to all 
others interested, by posting a like copy, if it affect a town, 
at the usual place of the town meeting, or if it affect a 
school district, on the door of the school-house therein, and 
by leaving a like copy at the abode of the clerk of the town 
or district respectively, the like time before the hearing. — 
id.s. 3. 

For forms, see ss. 10-13. 



92 HEARING BEFORE TOWN OFFICERS. 

4. Hearing. They shall hear all parties who desire to 
be heard, and examine all parties and witnesses under 
oath, which either of such selectmen may administer, and 
may adjourn when they deem it necessary. — id. s. 4. 

(a) They may, in their discretion, refuse to open the hearing after the evidence has 
been closed, but bearing in mind of course that a full hearing of all parties, who de- 
sire to be heard and have not waived their right, is indispensable. — 39 li. 254 ; Digest, 
p. 401, ss. 121, 123. 

(b) An appearance without objecting to the proceedings specificallv upon that 
ground only is a waiver of the defect.— 37 R. 287; 11 R. 294; Digest, p. 401, s. 118. 

5. Decision, requisites of. — They shall make their de- 
cision in writing, and cause the petition, order of notice, 
evidence of service and their decision in writing to be re- 
corded at length upon the town records, and file the origi- 
nal papers there ; and their decisions shall be of no force 
or effect until the same is done. — id. 

Form of decision and record, see s. 14. 

(a) The date of the recording should appear both upon the record and by the filing. 
For forms, see ante, p. 84-5, ss. 42, 44. 

6. Before other officers. The same rules shall apply 
to and govern the proceedings of fence-viewers, school 
committees, committees appointed by the selectmen, and 
all town officers when they are applied to or appointed to 
decide any question affecting the rights or claims of indi- 
viduals, saving that other or shorter notice, when required 
or allowed by statute, shall be sufficient. — id. s. 5. 

7. Effect of decision. The decision of such selectmen, 
fence-viewers, school committee, and other committees and 
town officers, shall be binding and conclusive upon all par- 
ties for the term of five years, unless an appeal shall be 
prosecuted therefrom in cases allowed by law. — id. p. 477, 
s. 6. 

8. Who may serve. No selectman or other officer shall 
act, in the decision of any such case, who would be disqual- 
ified to sit as a juror in the trial of a civil action in which 
any of the parties interested in such case was a party, from 
any cause except exemption from service as a juror. — id. 
s. 7. 

(a) The causes of disqualification may be understood from s. 22, c. 194, G. S. p. 396, 
which provides that any juror may be required by the court, on motion of any party 
in the cause to be tried, to answer upon oath whether he expects to gain or lose by the 
i:7sue of the cause ; whether he is related to either party; whether he has advised or 
assisted either party, or directly or indirectly given his opinion or has formed any 
opinion ; or is sensible of any prejudice in the cause; and if it appears that any juror 
is not indifferent he shall be set aside on that trial. See also Digest, p. 400, ss. 90-93, 
p. 446, s. 7, p. 554, ss. 129-132. 



HEARING BEFORE TOWN OFFICERS. 93 

(b) The question whether any member of the board is disqualified must of course 
be decided by the board, subject, however, to correction upon certiorari.— 19 R. 93; 
Digest, p. 400, s. 103. 

(c) Objections of this character, if known to the party, must be taken at the hear- 
ing or they are waived.— Digest, p. 637, s. 2. 

An objection that the oath of office has not been taken by the officers must be taken 
at the hearing.— 26 R. 132; Digest, p. 374, s. 17. 

9. Substitution. The place of such selectman, or per- 
son so disqualified, shall be supplied by those who are qual- 
ified to act by the appointment of a qualified person who 
has heretofore holden the same office in the town, or, in 
the case of committees, by a new appointment. If in any 
case the whole board is disqualified, the selectmen shall 
appoint a new board for that case, from qualified persons 
who have before holden the same office. — Gen. Sts. p. 477, 
c. 233, s. 8. 

10. The forms of an order of notice and return upon 
one may be : 

(a) A hearing upon said petition is hereby appointed at 

, in the town of the , on the — day of next, 

at — o'clock in the noon ; and it is ordered that the pe- 
titioner give notice of said petition and hearing to the said 

, by giving to him, or leaving at his abode, an attested 

(1) copy of said petition and this order thereon, fourteen 
days at least before the said day of hearing. 

Given under our hands, this — day of , 18 — . 

-, ) Selectmen of * 



(1) The copy may be attested by the person serving it; as- 

A true copy. Attest : 

* Or other official character. 



(b) B , , 18 — . I hereby certify that on the — 

day of , 18 — , I gave to , within named, [or, " I 

left at the abode of , within named," if such was the 

fact,] an attested copy of the within petition and order 
thereon. 



(c) M , ss. 18 — . Then appeared and 

made oath that the above certificate, by him signed, is true. 
Before me, 

, Justice of the Peace. 

11. Order of notice and service upon several defend- 
ants : 

(a) A hearing upon said petition is hereby appointed at 



94 HEARING BEFORE TOWN OFFICERS. 



in said , on the — day of next, at 



o'clock in the noon ; and it is ordered that the peti- 
tioner give notice of said petition and hearing to the said 

, by giving to said , or leaving at his abode, an 

attested (1) copy of said petition, and this order thereon, 
fourteen days at least before the said day of hearing. 

Given under our hands this — day of , 18 — . 

) Selectmen 
[ of 



(1) See s. 10 (1). 

(b) E , ,18 — . I hereby certify that on the — day 

of , 18 — , I gave to the within named , , 

each an attested copy of the within petition and order 

thereon, and on the — day of , 18 — , I left a like copy 

at the abode of respectively. 



(c) M , ss. Then appeared and made oath 

that the above certificate, by him signed, is true. 

Before me, 

, Justice of the Peace. 

12. Order of notice and return in cases of public and 
private interests : 

(a) A hearing upon said petition is hereby appointed at 

in said , on the — day of next, at — 

o'clock in the noon ; and it is ordered that the peti- 
tioners give notice of said petition and hearing to , 

guardian of , and all persons whose property or 

rights may be directly (1) affected by these proceedings, by 
giving to each one, or leaving at his abode, an attested (2) 
copy of said petition and order thereon, fourteen days 
at least before the said day of hearing, and to all others 

interested, by posting a like copy at , in said town, 

(the usual place of the town meeting), and leaving a like 
copy at the abode of the town clerk of the said town, the like 
time before the said day of hearing. 

Given under our hands this — day of , 18 — . 

) Selectmen 

— \ of 



(1) It is better to name such as are known to have a direct interest; hut if others 
come to the knowledge of the petitioners they should also be served with a copy. 

(2) The copy may be attested by the person serving it, as follows : 

A true copy. Attest : . 



HEARING BEFORE TOWN OFFICERS. 95 

(b) Gr , 18 — . I hereby certify that on the — 

day of , 18 — , I gave to each, an attested copy 

of the within petition and order thereon, and on the — day of 

, 18 — , I left a like copy at the abode of , , 

respectively. I also certify that on the — day of , 

18 — , I posted an attested copy of said petition and order 
at , in said town, the usual place of holding town- 
meeting, and on the same day I left a like copy at the 
abode of , town clerk of said town. 



M , ss. , 18 — . Then appeared , and 

made oath that the above certificate, by him signed, is true. 
Before me, 

, Justice of the Peace. 

13. Form of an order and return in cases affecting 
school districts : 

(a) A hearing upon said petition is hereby appointed at 
, in said , on the — day of next, at — 



o'clock in the noon ; and it is ordered that the peti- 
tioners give notice of said petition and hearing to 



-, and all (1) persons whose property or rights may 
be directly affected by these proceedings, by giving to each, 
or leaving at his abode, an attested (2) copy of said peti- 
tion, and this order thereon, fourteen days at least before 
the said day of hearing, and to all others interested by post- 
ing a like copy on the door of the school-house of the 
school district within mentioned, and leaving a like copy at 
the abode of the clerk of said district, a like time before 
said day of hearing. 

Given under our hands this — day of , 18 — . 

) Selectmen 

[ of 



(1) It is better to insert the names of those kDown to be directly interested, but if 
others come to the knowledge of the petitioners they should also be served with a copy. 

(2) The copy may be attested by the person serving it: 

A true copy. Attest: . 

(b) P , 18 — . I hereby certify that on the — day of 

, 18 — , I gave to , — , each an attested 

copy of the petition and order thereon, and on the — day 



96 HEARING BEFORE TOWN OFFICERS. 

of , 18 — , I left a like copy at the abode of 



respectively. I also certify that on the — day of 

, 18 — , I posted an attested copy of said petition and 

order, on the door of the school-house in the school district 
within mentioned, and on the same day I left a like copy at 
the abode of , the town clerk of said district. 



G , ss. , 18 — . Then appeared , and 

made oath that the above certificate, by him signed, is true. 
Before me, 

, Justice of the Peace. 

14. The beginning, conclusion and record of any 
decision or final order upon a hearing before town officers 
may be as follows : 

(a) Upon the foregoing petition we appointed a hearing 
and gave notice thereof as aforesaid, and on the — day of 

, 18 — , at — o'clock in the noon, at , in the 

town of , the time and place appointed [here insert 

the names of those who appeared as parties], appeared as 
parties [and said hearing was adjourned to the — day of 

, 18 — , at — o'clock, in the noon, at , in 

the town of ] ; and having heard all parties who de- 
sired to be heard, and examined them and their witnesses 
under oath, * * ^ # * * * * 

(b) Given under our hands this — day of , 18 — . 

) Selectmen 
S of 



(c) The town clerk must record the entire proceedings, 
as they take effect only from the time of their being 
recorded, and certify the record of each separate part as 
follows : 

Received and recorded, , 18 — , at — o'clock in the 

noon. 

A true record. Attest : 

, Town Clerk. 

(d) The filing upon the papers may be : Received and 
recorded , and filed , 18 — . 

By me, 

, Town Clerk. 



DRAWING JURORS. 



97 



CHAPTER XIX 



DRAWING JURORS. 



Notice of drawing, s. 9. 

To juror, s. 15. 
Penalties, against clerk, ss. 18, 21. 

Against juror, s. 19. 

Against selectmen, s. 20. 

Against sheriff, s. 18. 
Record, of drawing, s. 14. 

Of notice, s. 9. 
Return, of posting, s. 9. 

Of venires, s. 16. 
Selectmen, duties of, ss. 1, 2, 10, 11, 20. 
Sheriff, duty of, ss. 8, 18. 
Venires, issue of, ss. 7, 8, 17. 

Return of, s. 16. 



Clerk of court, duties of, ss. 7, 8. 
Court, duties of, ss. 6, 17. 
Death, insanity or sickness, s. 12. 
Drawing, by clerk, ss. 10, 12. 

By selectmen, ss. 11, 12. 
Exempts, ss. 3, 13. 
Form, of notice of drawing, s. 9. 

Of notice to juror, s. 15. 

Of notice to selectmen, s. 9. 

Of record of drawing, s. 14, 

Of return of posting, s. 9. 

Of return of venire, s. 16. 
Jury box, s. 4. 

List of Jurors, annually, ss. 1, 2. 
Revision of, s. 5. 

1. List of jurors. The selectmen of each town shall 
annually, in December, make a list of such persons as they 
judge best qualified to serve as jurors ; and such list shall 
be by them kept and delivered to their successors in 
office.— Gen. Sts. p. 394, c. 194, s. 1. 

2. Number upon the list. Such list shall not contain 
the names of more than fifteen persons, in towns containing 
less than one hundred and fifty ratable polls ; twenty-five, 
in all other towns containing less than three hundred ; 
thirty, in all other towns containing less than four hun- 
dred ; thirty-five, in all other towns containing less than 
five hundred ; forty, in all other towns containing less than 
twelve hundred ; and forty-five, in all towns containing 
more than twelve hundred ratable polls ; and shall not con- 
tain in any town less than one half the number fixed as the 
highest number of names to be put on said list in such 
toivn. — id. s. 2. 

3. Exempts. The governor, auditor, secretary and 
treasurer of the state, judges and clerks of the courts, regis- 
ters of deeds and of probate, sheriffs and their deputies, 
counsellors and attorneys-at-law, ordained ministers, prac- 
ticing physicians and surgeons, and postmasters and their 
assistants under the laws of the United States, are exempted 
from serving as jurors, and their names shall not be placed 
on said lists. — id. s. 3. 

4. Under lock. The names on the list in each town 
shall be written upon separate and similar pieces of paper, 
which shall be so rolled up that the name cannot be seen, 

7 



98 DRAWING JURORS. 

and placed in a box provided for that purpose by the se- 
lectmen, to be kept* by the town clerk under lock. — id. s. 
4. 

5. List to be revised. When the number of names in 
the jury-box is reduced below the smallest number which 
the list is required to contain, the selectmen, before the 
day appointed for drawing, shall revise" the list, and place 
in the box the names thereon, as required to be done in 
December. — id. s. 5. 

6. The court shall direct the number of jurors to be 
summoned, and from what towns, so that each may furnish 
its proportion of jurors in each year. — Gen. Sts. p. 395, c. 
194, s. 6. 

7. Venires to be issued. The clerk of the supreme 
court shall issue writs of venire facias, directed to the 
clerks of such towns as the court may order, forty days be- 
fore the sitting of the court, requiring them to cause to be 
selected and returned so many jurors as are therein men- 
tioned. — id. s. 7. 

8. Service upon clerk. He shall cause the venires to 
be delivered to such town clerks twenty-five days, or to 
the sheriff forty days, before the sitting of the court ; and 
the sheriff shall cause the venires received by him to be 
delivered to the town clerks twenty-five days before such 
sitting. — id. s. 8. 

9. Notice op drawing. Upon the receipt of the venire, 
the town clerk shall notify the selectmen of the time and 
place by him appointed for drawing jurors, and post a no- 
tice thereof in some public place in his town, seven days 
at least before the time so appointed. — id. s. 9. 

The form of the notice may be as follows : 

drawing jurors. 

To the Inhabitants and Selectmen of the town of , in the 

county of : 

You are hereby notified that I have appointed 



the — day of next, at — o'clock in the noon, 

and the town house in said town, as the time and place for 
drawing one grand juror and two petit jurors [or such 
other number as the venire requires] to serve as such, at 

the supreme judicial court to be holden at , in said 

county, on the Tuesday of next. 



DRAWING JURORS. 99 

Witness my hand at said , this — day of , 18 — . 

, Town Clerk. 

This is to be posted, and upon the day appointed a certifi- 
cate of service entered upon it, which may be as follows : 

A , 18 — . I certify that on the — day of , 18 — , 

I posted up the within notice at , a public place (1) 

in said town, and on the same day I left a like notice at the 
dwelling-house of ;, respect- 
ively, selectmen of said town [or, if such was the fact, " I 
gave to , selectmen of said town, per- 
sonal notice of the time and place and purpose within men- 
tioned"]. 

, Town Clerk. 

(1) As to what maybe considered a " public place " see ante, p. 36, s. 10 (c). It would 
be well to preserve a copy. 

10. Drawing by clerk. At the time and place so ap- 
pointed, the town-clerk, in presence of the selectmen, 
whose duty it shall be to attend, and of such other persons 
as choose to attend, shall draw from the box, so holden 
that the papers therein cannot be seen, the names of so 
many persons as are required by the venire. — id s. 10. 

11. By selectmen. In the absence of the clerk one of 
the selectmen shall draw the names. — id. 

12. Death, insanity or sickness. If any person whose 
name is so drawn is dead, insane, or disabled by sickness, 
or has removed from town, the town clerk shall certify the 
fact on the venire and draw another name. — id. s. 11. 

13. Two years' exemption. The persons whose names 
are so drawn shall be returned as jurors, and their names 
shall not be again placed in such box within two vears. — 
id. s. 12. 

14. Rrcord of drawing. The town clerk shall record 
the notice posted by him as aforesaid, the names of the select- 
men present, and of the persons drawn as jurors.— id. s. 13. 

He should also record the certificate of service and at- 
test the record of each, as in case of a warrant for town- 
meeting (ante, p. 60, s. 1), and under this attestation make 
a record of the drawing, as follows : 

At the time and place appointed in the foregoing notice, 

— , selectmen of the said town of 

, were present, and in the presence of the said select- 



100 DRAWING JURORS. 

men, and of such other persons as choose to attend, the 
following persons were by me drawn to serve as jurors at 
the court aforesaid, viz. : 



■, grand juror. 
— , as petit juror for the first week. 

, as petit juror for the second week, 

A true record. 

Attest : , Town Clerk. 

15. Notice to juror. A notice in writing of his selec- 
tion as a juror, of the court he is to attend, and the day 
and hour he is to appear, shall be given to each juror or 
left at his abode, four days at least before the sitting of the 
court, by the town clerk, a constable, or one of these lect- 
men. — id. s. 14. 

The notice to the juror may be as follows : 

To ■ , of — , in the county of : 

You are hereby notified that you have been duly selected 
•as a petit juror, from said town, to attend at the supreme 

judicial court to be holden at — , in said county, on 

jthe — Tuesday of next, and that you are re- 
quired to appear at said court on the — day of next, 

at — o'clock in the forenoon. 

Witness my hand at said , this — - day of , 

18—. 

. , Town Clerk. 



To ? of , in the county of : 

You are hereby notified that you have been duly se- 
lected as a grand juror, from said town, to attend at the 
supreme judicial court, to be holden at , in said coun- 
ty, on the Tuesday of next, and that you are 

required to appear at said court, at — o'clock in the fore- 
noon of that day. 

Witness my hand at said , this — day of , 

18—. 

, Town Clerk. 



16. Return of notice. The town clerk shall certify 
upon the venire the names of the persons so drawn, and 
that they have been notified as aforesaid, and cause such 
venire to be returned to the clerk of the court at the hour 
at which the juror is required to attend. — id. s. 15. 



DRAWING JURORS. 101 

The form of such return may be as follows : 

A , 18 — . I hereby certify that the following per- 
sons were, on the — day of last, duly drawn as jurors, 

for the court within mentioned, and that said persons were, 
on the — day of , 18 — , duly notified by me, by writ- 
ten notices left at their several places of abode, of their 
selection as such jurors, and of the day and hour when 
they must appear at said court, viz. : 

, as grand jurors to attend said court, on the 

Tuesday of , 18 — , at — o'clock in the forenoon ; 

, as petit jurors to attend said court on the 

day of next, at — o'clock in the forenoon. 

) Town Clerk 
, \ of 



17. Drawing while court is in session. While the court 
is in session, venires may be issued and notice of the time and 
place of drawing given, and the jurors drawn and notified 
forthwith ; and the jurors so drawn and notified shall at- 
tend the court as directed in the venire. — id. s. 16. 

18. Penalties for neglect. If any clerk, sheriff or 
town clerk neglects to perform any of the duties enjoined 
by this chapter, he shall be fined by the court twenty dol- 
lars. — id. s. 17. 

19. Against jurors. If any person selected as a juror and 
duly notified to attend, neglects, without sufficient cause, 
to attend agreeably to such notice, he shall be fined by the 
court not exceeding twenty dollars. — id. s. 18. 

20. Against selectmen. If any selectman willfully neg- 
lects to perform any duty required by this chapter, or puts 
upon the list a greater number of names than is allowed by 
law, or the name of any person at his own request, or on 
the request of any other person, or unlawfully withdraws 
from the box the name of any person upon the list, or is 
guilty of any fraud or collusion with respect to the draw- 
ing of jurors, he shall be fined fifty dollars for each offence, 
—id. s. 19. 

21. Against clerks. If any town clerk draws from the 
box a greater number of names than are mentioned in the 
venire, except in cases provided, or unlawfully puts or suf- 



102 



FENCES AND COMMON FIELDS. 



fers to be put into said box any name, after the same is de- 
livered to him as aforesaid, or is guilty of any fraud or 
collusion in respect to the drawing of jurors, he shall be 
fined fifty dollars.— Gen. Sts. p. 396, c. 194, s. 20. See 
s. 18, ante. 

22. Against sheriff, see s. 18. 



CHAPTEK XX 



FENCES AND COMMON FIELDS. 



Adjoining owner to fence, s. 1. 
Agreement, division by, s. 2. 
Application, what it may embrace, s. 

5(1), (2), s. 15. 
Apprisal of fence or repairs, ss. 8, 

10. 
Assumpsit, action of, ss. 9, 10. 
By-laws for taxing, to fence, s. 21. 
Ceasing to improve land, s. 11. 
Common lands, ss. 11, 20-23. 
Copy of decision to be furnished, s. 13. 
Damages for neglect to fence, s. 12. 
Demand, when necessary, ss. 10, 14 (c). 

Form of, s. 10. 
Decision, conclusive, s. 16. 
Division, by agreement, s. 1. 

By fence viewers, ss. 5, 10. 

By parol, ss. 4, 5 (b). 

By prescription, s. 3. 

Must be upon the true line, s. 14 (a), 
s. 16 (a). 

Ota part, s. 5 (b). 

Fence or ditch, may be half on each 
owner, s. 1 (a). 
Fees of fence- viewers, s. 14. 
Fence- viewers duties of, ss. 5, 7, 8, 10, 
17, 18. 



Form of division, by agreement, s. 2. 

Of proceedings for a division and ap- 
praisal, ss. 5, 7, 8, 10. 

Of proceedings against subsequent oc- 
cupant, s. 10. 
" Improvement," what is, s. 11 (a). 
Justice of peace, duty of, s. 20. 
Legal effect, statement of, s. 7 (1). 
Legal fence, what is, s. 6. 
Majority of board may act, s. 5 (a). 
Monuments upon a division, s. 2 (1). 
Oath, by fence- viewers, ss. 17, 15 (a). 
Occupant is owner, s. 18. 
" Owner," meaning of, s. 18. 
Parties admitted to defend, s. 18. (1). 
Penalty for neglect, offence-viewers, 
s. 19. 

For not renewing bounds, s, 23. 
Prescription, s. 3. 
Recorded, proceedings must be, s. 5. 

In adjoining towns, s. 17 (a). 
Repairs ordered, s. 7. 

Recovery for, ss. 8, 9. 
Subsequent improvement, s. 10. 
Tax for fencing, s. 22. 
Town line, fence on, s. 17. 
Twenty years' occupation, etc., s. 3. 
Writing, decision must be in, s. 13. 



1. Adjoining owners to fence. The owners of adjoining 
lands under improvement shall build and repair the parti- 
tion fence between them in equal share. Gen. Sts. p. 267, 
c 128, s. 1. 

(a) An occupant of land, who is bound to maintain a fence between his own and an 
adjoining inclosure, may place half of it, of reasonable dimensions, on the land of the 
adjoining owner; and he may cut half of a ditch on the land of such owner, when a 
ditch is proper for a partition fence.— 2 Metcalf R. 180. 

2. Division by agreement. Any division of such fence, 
made by the parties in writing, and recorded in the town 
records, shall be binding upon the parties and all succeed- 
ing owners and occupants of the land. — id. s. 2. 



FENCES AND COMMON FIELDS. 103 

The form of an agreement may be as follows : 

This agreement between and of , 

witnesseth : 

Whereas the said parties are owners of adjoining lands 

under improvement, situate in said , it is agreed to 

make division of the fence on the line between said parties 
as follows, viz. : The northern half of said fence, beginning 
at a cedar post (1) and ending at a stone post, shall be 
built and kept in repair by the said ; and the south- 
erly half thereof, beginning at said stone post and ending 
at a cedar post, shall be built and kept in repair by the said 



Witness our hands this day of , 18 — . 



Certificate of record as in s. 42, p. 84, ante, 

(1) The points of beginning and ending should be permanent monuments easily dis- 
tinguishable. 

3. Twenty years user. Such division may be established 
by usage (1) and acquiescence of the parties, and those 
under whom they claim, for twenty years. — id. s. 3. 

(1) Glidden vs. Towle, 31 R. 147, contra was decided before this provision of the 
statute. 

4. By parol. A parol division executed by the parties 
cannot be revoked even within twenty years, except by the 
consent of both parties, or by application to the fence- 
viewers.— 11 R. 241 ; Digest, p. 374, ss. 13, 14. 

5. Fence- viewers may divide. If the parties do not 
agree upon a division, the fence-viewers, upon application, 
shall make such division, which being recorded in the town 
records shall be of the same force as a division made by the 
parties, and a copy of such record shall be evidence. — Gen. 
Sts. p. 267, c. 128, s. 4. 

(a) A majority of the board may act.— Gen. Sts. p. 40, c. 1, s. 14; 31 R. 165; Digest, 
p. 374, s. 26. 

(b) If a part of a continuous line has been divided, the fence-viewers may divide the 
residue; but if the whole is undivided, they cannot ordinarily divide a part only 
against an objection of the other party upon that ground, taken at the hearing. If a 
part has been divided, thev cannot, against such objection, disregard it and make a divis- 
ion of the whole. See 11 Cushing, R. 450; 13 Maine, R. 424. But a parol division and 
an occupation short of twenty years will not affect their jurisdiction.— 11 Ii. 241 ; Digest, 
374, ss. 13, 14. 



104 FENCES AND COMMON FIELDS. 

An application to the fence-viewers to divide may be : 
To the Fence-Viewers of the town of . 



— , of said town, respectfully represents that 

he and , of said town, are adjoining owners of lands 

in said town under improvement, and that the partition 
fence between them is undivided, and they do not agree 
upon a division [or, " and there is no sufficient fence (1) 
upon the line between said lands] ; wherefore he requests 
you to make a division of such fence (2) and affix a time 
for building and repairing the same. 

Dated at said , this day of , 18 — . 



Order of service and return as in s. 10, p. 93, ante. 

(1) If there is no sufficient fence upon the line, the application may embrace the divis- 
ion of the fence, its sufficiency and the time of building or repairing it.— 44 R. 458, 
Digest, p. 374, ss. 22, 23. 

(2) It is not deemed expedient to include several fences in the same application, 
though this has been held admissible.— 31 R. 147, Digest, p 374, s. 24. 

The final order, after proceeding as in (a), s. 14, p. 96, 
ante, to the word oath, may be : 

We find that the said and are owners of ad- 
joining lands insaid town of under improvement, and 

that the partition fence between them is undivided and they do 
not agree upon a division, and there is no sufficient fence 
upon the line between their said lands ; and we therefore make 
a division of fence between them as follows : That part of said 
partition fence beginning at a cedar post in the line be- 
tween said lands at the northeast corner of the land of the 

said , and ending at a stone post in the line between 

said lands, shall be built and kept in repair by the said 

; and that part of said fence beginning at said stone 

post and ending at a tree at the southwest corner of 

the land of said , in the line between said lands, 

shall be built and kept in repair by said . We also 

hereby give notice to the parties to build and repair the 

fence assigned to each respectively within days from 

the date hereof. Our fees for this service are dollars. 

Given under our hands this day of , 18 — . 

) Fence Viewers 
J of 



FENCES AND COMMON FIELDS. 105 



M ss. , 18 — . Then appeared 



fence-viewers of the town of , and made oath that in 

the proceedings and division aforesaid they have acted im- 
partially, uprightly and to the best of their judgment. 
Before me, 

, Justice of the Peace. 

Notice to the parties as in s. 13, post. 

Record by town clerk as ante, p. 96, s. 14 (c), (d). 

6. Legal fence, what is. All fences four feet high and 
in good repair, consisting of rails, timber, boards, or stone 
wall, and all brooks, rivers, ponds, creeks, ditches, hedges, 
and other things deemed by the fence-viewers to be equiva- 
lent thereto, shall be accounted legal and sufficient fences. 
Gen. Sts. p. 267, c. 128, s. 5. 

7. Repairs ordered. The fence-viewers, upon applica- 
tion of either party, shall view any fence alleged to be in- 
sufficient, and if they judge it to be so, shall give notice to 
the delinquent party to build or repair the same within a 
time by them limited. — id. s. 6. 

If no division has been made the party may proceed as 
in s. 5, otherwise as follows : 

To the Fence- Viewers of the town of : 

A B , of said town, respectfully represents that 

the partition fence between the improved lands in said town 

of said A B and C D of said 

town, has been divided, the pait thereof beginning at ■ 

and ending at , to be built and kept in repair by said 

A B ; and the part beginning at and end- 
ing at , to be built and kept in repair by said C 

D (1). Yet the said C D has wrongfully 

neglected to build and keep in repair the fence beginning at 

and ending at , and there is no sufficient fence 

upon that part of the line between said lands ; wherefore 

the said A B requests you to order the said 

C D to build and put in repair a sufficient fence 

upon his part of said line within such time as you shall 
deem reasonable. 

Dated at said , this day of , 18 — . 

A B . 

Order of notice, service and return as ante, p. 93, s. 10. 

(1) This may be stated though the division was made between prior owners, for such 
is the legal effect. 



106 FENCES AND COMMON FIELDS. 

Final order, after proceeding as in (a) s. 14, p. 96, ante, to 
the word oath, may be : 

And having viewed the fence alleged to be insufficient we 
find that the partition fence between the improved lands, in 

said town, of A B and C D has been 

divided, as stated in said petition, and that said C 

D has wrongfully neglected to build and keep in repair 

that part of said fence beginning at and ending at , 

and there is no sufficient fence upon that part of the line 
between said lands ; we therefore hereby give notice to the 

said C D to build and put in repair a sufficient 

fence upon that part of said line within days from 

the date hereof. Our fees are dollars. 

Given, etc., as in s. 5. 

8. If order disregarded. If the party so notified shall 
not build or repair such fence within said time, the owner 
of the adjoining land may build or repair the same ; and 
the fence-viewers, upon application, shall view the fence so 
built or repaired, and if they judge the same and the resi- 
due of the fence between the same owners upon the same 
tract of land to be sufficient, they shall appraise the fence 
so built or repaired. — Gen. Sts. p. 267-8, c. 128, ss. 7, 8. 

The form of such application may be as follows : 
To the Fence- Viewers of the town of : 

A B , of said town, respectfully represents that 

on the day of last, upon the application of said 

A B , C D of said town was duly 

notified by the fence-viewers of said town to build and put 
in repair a sufficient fence on that part of the line between 
the improved lands of said parties, in said town, beginning 

at and ending at within days from the said 

day of . Yet the said C D did not 

build and put in repair a sufficient fence as so directed, and 

the said A B , being the owner of the adjoining 

land, after the expiration of said time built and put in re- 
pair such fence, which fence and the residue of the fence 
between the same owners of the same tracts of land are now 
sufficient ; wherefore he requests you to view said fence 
and repairs so made by him, and appraise the same. 

Dated at said , this day of , 18 — . 



FENCES AND COMMON FIELDS. 107 

Order of notice, service and return as in s. 10, p. 93, ante. 

The final order, after proceeding as in (a) s. 14, p. 96, 
ante, to the word oath may be : 

We find that said C D was ordered to build 

and put in repair a sufficient fence on that part of the line 

between the improved lands of said A B and 

C D in said town, beginning at and ending 

at , within days from the said day of , 

and that the said C D did not build or put in 

repair a sufficient fence as so directed, and the said A 

B , being the owner of the adjoining land, after the 

expiration of said days built and put in repair such 

fence, which we have viewed, and which, with the residue ot 
the fence between the same owners upon the same tracts 
of land, we find and adjudge to be sufficient ; and we ap- 
praise the same as built and repaired (1) by the said A 

B at the sum of dollars and cents. Our 

fees for making said appraisal are dollars. 

Given, etc., as in s. 5. 

(1) Not the value of the entire fence, unless he has huilt the whole, hut only the 
value of his labor and materials, is to be allowed him. 

9. Double value and costs. The person so building or 
repairing may demand and recover double the said appraised 
value thereof of the delinquent party, with costs of suit, in 
an action of assumpsit for labor and materials. — id. s. 8. 

10. Subsequent improvement. The owner of improved 
land adjoining unimproved land of another, having erected 
a division fence, may demand and recover of the owner of 
such adjoining land, when he begins to improve (1) the 
same, the value of such part of the fence as upon a divi- 
sion then or previously made it was his duty to build. 

In such case, if the parties do not agree, the fence-view- 
ers, on application, shall appraise such part ; and the party 
may recover the value appraised or agreed, in an action of 
assumpsit for so much fence sold, if the same is not paid 
in thirty days after demand. — id. ss. 10, 11. 

(1) Whether he will be liable if he has ceased to improve at the time of the hear- 
ing—see s. 11, post, and 1 Cush. 11, 15. 



108 FENCES AND COMMON FIELDS. 

The demand may be as follows : 
To — of : 

You are requested to pay me the value of such part of 
the division fence between our lands, in said town, hereto- 
fore erected by me, as upon a division of said fence it was 
your duty to build. I estimate such value at dollars. 

Dated at said , this — day of , 18 — . 



An application for division, if none has been made, may 
be as follows : 

To the fence-viewers of the town of : 



J C , of said town, respectfully represents 

that he has heretofore owned and improved a tract of land, 
in said town, adjoining unimproved land, in said town, 
owned by W C , of said town, and erected a di- 
vision fence between said lands, beginning at and 

ending at . The said W C has since 

begun to improve his said land, but said parties do not 
agree what is the value of that part of said fence it was 

upon a division the duty of said W C to build 

[nor upon a division of said fence]. Wherefore the said 

J C requests you [to make division of said 

fence and] to appraise such part of said fence as upon di- 
vision it was the duty of said W — C to build. 

Dated at said , this — day of , 18 — . 



Order of notice, service and return as in s. 10, p. 93, ante. 

The final order, after proceeding as in (a) s. 14, p. 96, 
ante, to the word oath, may be : 

We find that said tracts of land have been owned and 
improved, and a division fence erected as stated in said peti- 
tion, and that said parties have not agreed what is the value 
of that part of said fence that upon division of said fence it 

was the duty of said W C to build, [or, " upon a 

division of said fence "]. We therefore [make a division of 

said fence as follows, — that part thereof beginning at 

and ending at shall be built and kept in repair by 

said J C , and that part thereof beginning at 

— and ending at shall be built and kept in 



FENCES AND COMMON FIELDS. 109 

repair by said W C and we] appraise such part 

of said fence as upon division it was the duty of said 

"W C to build, being the part beginning at 

and ending at , at the sum of dollars. Our 

fees are dollars. 

Given etc., etc., as in s. 5. 

11. Ceasing to improve. When + he owner of land 
ceases to improve the same, or lays it in common, he shall 
not remove his part of the partition fence, but is not bound 
to repair it so long as said land remains unimproved or in 
common.— Gen. Sts., p. 268, c. 128, s. 12. 

(a) The duty of maintaining partition fences does not extend to the owners of public 
buildings erected on lands laid open to public use; it is otherwise of the owners of 
private buildings.— 43 R. 260; Digest, p. 373-4, ss. 6, 7. 

12. Damages from neglect. The party neglecting to 
build or keep in repair any partition fence which he is 
bound to maintain is liable for damages arising from such 
neglect, and shall have no remedy for damages happening 
to himself therefrom. — id. s. 13. 

(a) This has reference only to the owner or occupant of the adjoining land, or to 
cattle rightfully upon such land.— See Digest, 373, I; p. 414, XV. 

13. Decision in writing within one week. The fence- 
viewers shall make their decision in writing, and cause a 
copy thereof to be given to each of the parties within one 
week. — id. s. 14. 

(a) A failure to furnish a copy as here directed may render the fence-viewers liable, 
but will not invalidate their proceedings — 26 R. 138; Digest, p. 374, s. 30. 

14. Fees, and remedy for. The fence-viewers shall be 
paid each one dollar per day for his services, by the party 
making the application, who may recover one-half thereof 
of the other party, unless the fence-viewers otherwise ap- 
portion the costs; but in case of neglect by such other 
party to make or repair the part of the fence which he is 
bound to maintain the whole costs may be recovered of 
him. — id. s. 15. 

(a) There can be no recovery of the other party unless the proceedings were legal. — 
44 R. 461 ; Digest, p. 374, s. 28. 

(f) It is not necessary to specify the items of the fees in the report. — 26 R. 132 ; 
Digest, p. 374, s. 31. 

(c) A demand before suit is necessarj .— 31 R. 147; Digest, p. 375, s. 33. 

15. Several subjects in one application. Every appli- 
cation to the fence-viewers shall be in writing, and one ap- 



110 FENCES AND COMMON FIELDS. 

plication may embrace so many subjects as from the nature 
of the case may be acted upon at one meeting. — id. s. 16. 

Note.— See note (1) s. 5, ante. 

16. Decision conclusive. The decision of the fence- 
viewers, upon their being sworn that they have acted im- 
partially, uprightly, and to the best of their judgment, 
shall be final and conclusive upon the parties. — id. s. 17. 

(a) They can divide the fences but not the lands, and therefore are bound to keep 
upon the true line ; but a mere dispute about the line will not deprive them of juris- 
diction.— 24 R. 164; Digest, p. 374, ss. 19-21. It is a legal division of the fence if the two 
corners and the intermediate bound are upon the true line, if the division, as it need 
not, gives no other bounds, and the parties must then build each way upon the true line 
whether that be straight or crooked. 

(b) The oath here required is in addition to the oath of office, and should be taken 
after the division. An exception that the oath of office has not been taken, if not 
taken at the hearing, is waived.— 26 E,. 132; Digest, p. 374, s. 17. 

17. Town line, fence on. If the fence in controversy 
is situate on the line of two towns, the application shall be 
made to the fence-viewers of the town in which the parties 
reside ; if they reside in different towns, to the fence-view- 
ers of that town in which the applicant does not reside. — 
id. s. 18. 

(a) In such case a record should be made in each town by the town clerk thereof. 

18. Occupant is owner. The actual occupant of any 
land shall be deemed the owner (1) thereof for any of the 
purposes of this chapter. — id. s. 19. 

(1) The real owner should be admitted to defend. — Digest, p. 551, s. 74. 

19. Neglect of official duty. Any fence-viewer neg- 
lecting without sufficient cause to attend and perforin any 
official duty shall forfeit six dollars to the person suing 
therefor. — id. s. 20. 

20. Common lands, owners of. — When several owners 
of land agree to improve the same in one common field, 
any justice, on application of two or more owners, may 
call a meeting of such owners, and the majority of them 
when met may determine in what manner the same shall 
be fenced.— Gen. Sts. p. 269, c. 128, s. 21. 

21. May assign share of fence. They may assign to 
each owner the share offence to be erected and maintained 
by him ; and such assignment being recorded in the town 
records, every such owner and all succeeding occupants of 
his land shall be liable in relation thereto as if the same 
were a partition fence of his own land. — id. s. 22. 



STRAYS AND LOST GOODS. 



Ill 



22. And tax for fencing. Such owners may adopt by- 
laws for building and maintaining their common fence by a 
tax, and their officers chosen in conformity to such by-laws 
may assess and collect such taxes. — id. s. 28. 

33. Renewal of bounds. Owners of adjoining improved 
lands, where there is no partition fence, shall, once in every 
five years, run the lines and renew the bounds between 
them ; and any such owner neglecting without sufficient 
excuse to attend and renew the bounds, upon six days' 
previous notice given by any other such owner, shall for- 
feit five dollars to the owner giving the notice. — id. s. 2-1. 



CHAPTER XXI. 



STRAYS AND LOST GOODS. 



Appraisers, application for, s. 4. 

Form of application, s. 4 (a). 

Form of appointment, s. 4 (b). 

Form of oath, s. 4, (c). 

Form of return, s. 4, c. 

Return by of appraisal, s. 5. 

Warrant to appraisers, ss. 4 (b), 5. 
April to November, no strays, etc., s. 12. 
Common law, liability of finder, s. 1 (1). 
Destroying- notices, etc., penalty for, 

s. 11. 
Fees and charges, for taking, etc., s. 13. 

How determined, s. 8. 
Finder of property, duties of,ss. 1, 4, 10. 

At common law, s. 1 (1). 



Finder of property, if owner is known, 
s. 1 (1). 

May keep property, when, s. 6. 

Neglect of, penalty for, ss, 1(1), 10. 

To pay town treasurer, s. 6. 
Justice, duties of, and fees. ss. 4-8, 13. 
Notice of finding, ss. 1, 2, 3, 10. 

Form of, s. 1 (a). 
Owner of strays, may pay, when, ss. 7, 8. 

If animal dies, liable, s. 9. 
Posting and publishing notices, s. 3. 
Town Clerk, duties of, and fees, ss. 2, 11, 
13. 

Penalty for neglecting, s. 11. 



1. Notice of finding. The person finding any money 
or goods, or finding and taking up any stray beast, the 
owner of which is unknown (1), shall give to the town 
clerk a notice in writing, describing the money, goods, or 
beast, within six days after so finding and taking up the 
same. — Gen. Sts. p. 272, c. 130, s. 1. 

(1) The statute does not apply if the owner is known.— 18 It. 119; Digest, p. 375. 

The duties of a finder of property, who takes the same into his possession, are, except- 
ing where varied by statute, precisely those of a depositary, and he will be liable if the 
property is lost by his gross negligence. — 27 R. 86, 90, Digest, p. 91, ss. 20, 21. 

Where a person takes an estray to keep it for the owner, but neglects to pursue the 
course prescribed by the statute, he is nevertheless not liable to an action of trover, 
unless he uses the estray, or refuses to deliver upon demand. — 1 Pick. p. 249. 

(a) The form of the notice may be: — 
To the Town Cleric of the town of : 

You are hereby notified that on the — day of , instant, I found going at large, 

without any keeper, in the highway in said town, [or, " I found doing damage in my 
inclosure in said town,"] one stray, [here describe the animal with any particular 
marks,] the owner of which is unknown, and took up the same. 
Dated at said , this — day of , 18—. 



112 STRAYS AND J^OST GOODS. 

2. To be recorded. The town clerk shall record such 
notice in a book to be kept by him for that purpose. — id. s. 2. 

Form of record, see ante, p. 84, s. 42. 

3. Posting notice. The finder of such property shall, 
within six days after finding or taking up the same, post a 
notice, describing the money, goods, or beast, at two public 
places (1) in the town where the same was found, and, if 
the value thereof exceeds five dollars, at some public place 
in each of two adjoining towns, or cause a copy of such 
notice to be published (2). — id. s. 3. 

(1) Meaning of public place, see ante, p. 36, s. 10 (c). 

(2) Published, meaning of, see ante, p. 4, s. 30. 
The form of the notice may be : 

STRAY. 
Notice is hereby given that, etc., (as in ante, s. 1 (a). 

4. Appraisal, etc. If no owner appears within one 
month after notice given as aforesaid, the finder shall apply 
to a justice, who shall appoint three persons to appraise 
such property, unless the same is money. — id. s. 10. 

(a) It has been held under a similar statute that a verbal application is sufficient, 
(4 Pick. 257,) but it is not advisable to say the least. The form of an application, and 
an appointment thereon, may be : — 

To , a justice of the peace in and for the county of : 

The undersigned respectfully represents that on the — day of last, he found, 

etc., [as in (a), s. 1, ante.] and afterwards on the — day of last, within six days after 

said rinding and taking, he gave a notice in writing thereof to the town clerk of said 

town, describing the said , and on the —day of last, and within said six days, 

he posted a like notice at , and at , two public places in said town ; but no 

owner of said has appeared, although one month from the time of giving said 

notice has now elapsed; wherefore he prays said justice to appoint three persons to 

appraise the said . 

Dated at said , this — day of , 18—. 

(b) To of , in the county of : 

Pursuant to the foregoing application you are hereby appointed to appraise the , 

in said application mentioned, and make return to me of your appraisal. 

Given under my hand at , in said county, this — day of , 18 — . 

Justice of the Peace. 

(c) , ss. , 18 — . Then appeared the above named , and made oath that 

they would faithfully discharge their duty as appraisers of the , mentioned in the 

foregoing warrant. Before me, 

, Justice of the Peace. 

(d) Pursuant to the foregoing appointment we have carefully examined the ,in 

said warrant mentioned, and do upon oath appraise the value of the same at dol- 
lars, and no more. 

Witness our hands this day of 18—. 

Appraisers. 



5. Appraisers, duties of. The appraisers shall be sworn 
by the justice to the faithful discharge of their duty, shall 
appraise the property, and make a return of their appraisal 
to the justice. — id. s. 5. 

Form of return, ante, (d), s. 4. 



STRAYS AND LOST GOODS. 113 

6. Finder, when to keep. If the owner of such property 
or beast does not appear and claim the same within one 
year after notice given to the town clerk, the person finding 
or taking up the same may keep the property for his own 
use, upon paying to the town treasurer the residue of such 
money or of the appraised value of such property or beast, 
after deducting the fees and expenses incurred. — id. s. 6. 

7. Payment by owner. The owner, within one year, 
upon paying or tendering to the finder a reasonable sum for 
the keeping, charges, and fees incurred, shall be entitled 
to his property. — id. s. 7. 

8. Amount, how determined. Any justice shall adjust 
and determine the amount of the fees and charges of the 
finder, clerk, appraisers and justice, and the expense of 
keeping, on application of any person interested. — id. s. 8. 

9. Owner, liable when. The owner of any stray beast 
shall be liable to the person taking up the same for such 
fees, charges and expenses, in case the beast dies without 
the fault or negligence of the finder. — id. s. 9. 

10. Neglect of finder, penalty for. Any person find- 
ing any property or taking up any stray beast, and neglect- 
ing to give notice to the town clerk, or to post notices as 
aforesaid, or to cause such appraisal to be made, shall re- 
ceive nothing for his services or expenses, and forfeit a sum 
equal to double the value of the property found or beast 
taken up. — id. s. 10. 

11. Destroying or not recording notice. If any town 
clerk shall omit to record any notice as aforesaid, or if any 
person shall pull down or destroy any notice so posted, till 
the purpose thereof is answered, he shall forfeit the sum of 
thirty dollars.— Gen. Sts. p. 273, c. 130, s. 11. 

12. April to November. No beast, except horses and 
mules, shall be taken up as a stray, from the first day of 
April to the first day of November, unless the same shall 
be found doing damage in some inclosure. — id. s. 12. 

13. Fees. The fees for notifying the clerk shall be twen- 
ty-five cents ; for each advertisement, twenty-five cents ; for 
recording the notice, ten cents ; for appointing appraisers, 
twenty-five cents ; for receiving and recording the appraisal, 
twenty-five cents ; for adjusting the charges and expenses, 
twenty-five cents.— id. s. 13. 



114 



POUNDS AND IMPOUNDING. 



CHAPTER XXII 



POUNDS AND IMPOUNDING. 



Application, for appraisers of animals, 
ss. 10, 33, 36, 37. 

For an appraisal of damages, ss. 7 (a), 
27, 33. 

For a sale. ss. 10, 33, 36. 
Appointment of appraisers, ss. 7, 10,11, 

29, 34. 
Appraisers of animals, ss. 10, 11. 

Appointment of, and duties, ss. 8, 10, 
11, 34. 

Fees of appraisers, s. 9. 
Appraisers of damages, ss. 7, 10, 11. 

Appointment and duties of, ss. 7. 10, 
11, 27-32. 

Notice by, to party, ss. 30, 34. 

Not limited as to damages, s. 8(1). 

Oath of, s. 8 (3), ss. 32, 34. 

Return of and notice, s. 8 (1), (2), ss. 
31, 34. 
Certificate of oath, form of, s. 32. 
Discharge from pound, ss. 6, 9. 10. 
Estimate of damages, by appraisers, 
ss. 8, 31. 

For pound-keeper, ss. 3, 3 (1), 22, 23. 

Time of leaving with him, s. 3 (1). 
Fees for impounding, etc., s. 21. 

Of appraisers, s. 9. 

Of pound-keeper, ss. 19, 20. 

Remedy for, if not paid, ss. 9, 20 (1). 

Upon a rescue and retaking, s. 20, 20(1). 
Highway, cattle at large in, s. 1, 1 (3). 

Cattle of non-residents, s. 1 (3). 

Cattle of adjoining owner, s. 1 (3). 

Lands in common, s. 1 (3). 

Turnpike road is a highway, s. 1 (3). 
Impounder, duties of, ss. 1-4, 12, 18. 

Liability to pound-keeper, s. 20 (1). 

Not liable for his acts, s. 18 (a). 

Right to retake, ss. 15, 16. 

Right to use force, s. 15 (a). 
Inclosure, what is, s. 1 (2). 
Irregular proceedings, effect of, s. 
1(1), s. 4(1), s.7(a). 



Justice, duties of, and fees, ss. 7, 10, 11. 
Nominal damages, no impounding for, 

s. 1 (2). 
Notice by appraisers, ss. 8, 30. 
Notice by a justice, form of, s. 28. 
Notice by party impounding, ss. 4, 5. 

Form of notice, ss. 24, 25, 26. 

Neglect to give, effect of, s. 4 (1). 

Hour of the day not necessary, s. 4 (2). 

Requisites of, s. 4, s. 4 (2). 

Waiver of defects in, s. 4 (1). 
Overplus, payment of, s. 12. 
Payment of damages, ss. 6, 9. 
Posting notice and form of, ss. 5, 26. 
Pound-breach and rescue, s. 15. 

What is a rescue, s. 15 (a). 
Pound-keeper, duties of, s. 2 (a), ss. 6, 
18, 19. 

Fees of, ss. 19, 20. 

Liability of, s. 2 (a), s. 9 (1), s. 19. 

May recapture, s. 16. 
Pounds to be maintained, s. 14. 

Penalty for neglect, s. 14. 

When no pound, barn-yard may be, 
s. 1. 
Refusing to give up cattle, s. 17. 
Replevin, action of, ss. 2 (1). 
Rescue, penalty for, s. 15. 

Not pui-ged by retaking, s. 16 (1). 
Retaking cattle, rescued, s. 16, 16 (1). 
Return of appraisal, ss. 8, 31. 
Sale of cattle, s. 7 (a), ss. 10, 11, 35, 36, 

37. 
Strays, when cattle are, s. 13. 
Sustenance for cattle, ss. 18, 19, 18 
(a). 

To be furnished in the pounds, s. 2 (1). 
Sunday,'i mpounding upon, a. 1 (a). 
Taking up cattle, horses, etc., s. 1, s. 

1(1). 
Towns, to maintain pounds, s. 14. 
Trespasser, ab initio, s. 1 (1). 
Waiver of objections, s. 4 (1), s. 8 (3). 



1. Impounding. Any person may (1) impound any 
swine, neat cattle, horses, sheep or other creatures doing 
damage (2) in his inclosure (3), or any such creature going 
at large in any highway (3) or common in violation of any 
law or of any by-law of the town. — Gen. Sts. p. 269, c. 129, 
s. 1. 



(1) If a man finds stray cattle in nis field he is not bound to impound them or retain 
them for the owner, but may drive them off into the highway without being guilty of 
a conversion.— 6 R. 213, Digest, p. 616, s. 95; 18 Pick. 227. 

But if he drive them an unreasonable distance he will be a trespasser from the be- 
ginning.— 8 R. 404, Digest, p. 616, s. 96. It has been held that the taking up must be 
before the cattle have left the inclosure.— 31 Vt. 690 ; but if so soon after as to be a part 
of the same transaction it may be sufficient. 

He may employ others to drive them.— 18 Maine, 247; 17 do. 187; 12 Met. 198. 

He must drive them to the pound in a reasonable time. What time is reasonable is 



POUNDS AND IMPOUNDING. 115 

to be determined by those who try the case — 45 R 472, Digest, p. 548, s. 8; and there 
must be no unreasonable delay oii his part in complying with all the requirements of 
the statute, or the statute will afford him no protection.— id. 44 R. 211, Digest, p. 518, 
s. 15; 21 Pick. 55; 28 Maine, 481. 

(2) The party cannot impound for nominal damages; and, if the appraisers return 
that there was no damage, he will be liable in replevin to the owner. — 33 R. 318, Digest, 
p. 547. s. 7; 17 Maine, 178. 

In the eye of the law every man's land is enclosed, though not surrounded by any 
visible and material fence.— 45 R. 472, Digest, p. 548, s. 9. But a party through whose 
fault the cattle of an adjoining owner came upon his land by reason of an insufficient 
division fence cannot distrain them.— id. Digest, p. 12 (d); 13 R. 399; 14 Maine, 419. 

(3) A turnpike is a highway within the meaning of the statute. — 4 Pick. 258; 12 Met. 
198. 

A man driving cattle along a public highway must use ordinary care and diligence 
to prevent their going upon the adjoining land, and in bringing them back into the 
highway, and if he do so the owner of the land has no ground of complaint. — 4 R. 514; 
4 Hurlstone and Norman Exr. Rep. 631; 20 U. S. Digest, p. 518, ss. 14. 15. 

A vote of a town to restrain cattle is binding upon persons not inhabitants. — 4 Pick. 
257. 

Cattle are " going at large " although feeding upon the side of the road adjoining 
land of their owner, if not in charge of a keeper— 1 Allen, 270; and see 4 Gray, 345. 

And so, although they have been intrusted by their owner to a servant, with other 
cattle, to be driven to pasture, and have only left the drove a mile before reaching the 
pasture, and there remain feeding, and the servant returns in less than an hour to the 
place where he lost them.— 4 Gray, 345. 

Lands lying in common and undivided are not a " common " within the meaning of 
the statute.— 16 Vt. 677. 

(a) There mav be an impounding upon the Sabbath in a case of necessity, but not 
otherwise.— 4 R. 153, Digest, p. 590, s. 11; 47 R. 29-33; 23 Pick. 252; 12 Met. 208. The 
estimate of damage and the notice may be given on Monday. 

2. Place op impounding. Such creatures shall be im- 
pounded in the public pound (1), if there is any in the 
town ; otherwise in the barn or inclosure of the person 
taking them up. — id. s. 2. 

(1) If a pound-keeper drive from the pound to his barn or pasture, creatures which 
have been legally impounded, for the purpose of more conveniently furnishing them 
with food and drink, he thereby loses his legal control over them— 21 R. 448; and 
thereupon replevin maybe maintained against the pound-keeper— 21 R. 448; and 
trespass against the party impounding, if he has them sold.— 44 R. 211; Digest, p. 547, 
ss. 2, 3. # 

A person cannot impound cattle by turning them into his barn-yard and then turn- 
ing them out to graze in inclosed fields near the yard in the day time, and at night con- 
fining them again in the yard. — 36 Vt. 341. 

A pound-keeper may lawfully impound beasts which have been distrained damage- 
feasant in a yard furnished and used by the town as a town pound, if the town have 
furnished and used no other place as a pound, although the inhabitants of the town 
have passed no vote concerning the same, and taken no action at any town meeting for 
the purpose of establishing it as a pound. — 6 Allen, 408; but see 1 Rhode Island, 219; 
11 U. S. Digest, p. 264, s. 3. 

(a) Replevin cannot be maintained against a pound-keeper, so long as he retains the 
creatures impounded within the custody of the law. — 21 R. 448, Digest, p. 547, s. 4; 5 
Cush. 263. 

3. Estimate op damages. The person so impounding 
shall leave (1) with the pound-keeper, in writing, an esti- 
mate of the damage done by such creatures, or of the penalty 
incurred by the owner, and the amount of the fees and 
charges incurred. — Gen. Sts. p. 270, c. 129, s. 3. 

(1) The estimate of damages need not be left with the pound-keeper at the time of 
the impounding ; it is sufficient, if left with him within a reasonable time afterwards. — 
39 R. 475, Digest, p. 548, s. 10. Neglect to leave it will make the party a trespasser from 
the beginning.— 13 Met. R. 407 ; 10 Allen, 544. 

The estimate should be signed by the person impounding by himself or agent, and 



116 POUNDS AND IMPOUNDING. 

be in his name.— 18 Maine, 247 ; 17 do. 187 ; 12 Met. 198. And it determines who is the 
person impounding.— id. 

If taken for being at large in a highway in violation of some law or by-law, no esti- 
mate of damages is required— 23 Peck. 251. 12 Met. 198; but instead, a statement of the 
penalty incurred.— 17 Maine, 239. And a statement in the certificate that "the owner 
or owners are requested to pay the forfeiture and costs " is not a compliance with the 
statute.— 17 Maine, 239. 

4. Notice to owner. He shall, within twenty-four hours 
from the time of impounding, cause a notice (1) in writing, 
describing the creatures impounded, stating his estimate of 
the damage done, and the time when and the place where 
the same was done, or the penalty incurred, the amount of 
fees and charges then incurred, and the place of impound- 
ing, to be delivered to or left at the abode of the owner or 
person who last had them in his keeping, if known. — id. 
s. 4. 

For forms, see ss. 24, 25. 

(1) A neglect to give such notice will render the subsequent proceedings illegal; and by 
some decisions will make the party a trespasser from the beginning.— 9 R. 292; Digest, 
p. 548, ss. 11, 12; 21 Pick. 55; 13 Met. 407; 10 Allen, 544; 18 Maine, 247; 17 do. 187; 
7 Cush. 355. Contra as to the prior proceedings, see 36 Vt. 341. Actual knowledge by 
the owners of the beasts impounded, of the impounding thereof, is not equivalent to the 
written notice required.— 7 Cush. 335; 17 Maine, 239. 

If the owner of cattle replevy them within twenty-four hours after they have been 
impounded for running at large, he cannot afterwards object that no notice of such 
impounding was given him.— 23 Pick. 251; 12 Met. 118; 2 Gray, 179. But he does not 
waive his rights by paying the fees and charges of the impounder and pound-keepers ; 
nor by declaring to a third person, after the commencement of the action, that he 
should require the defendants to prove that the place where they took the beasts was 
a public highway.— 7 Cush. 355. 

(2) The notice need not state the hour of the day. — 12 Met. 198. 

A notice to the owner of beasts impounded for going at large in the highway, which 
states merely that the beasts " were running at large, and were trespassing upon the 
premises of other individuals," does not state a sufficient cause of impounding. — 2 Gray, 
178. 

5. Posting notice. If such owner or keeper is not 
known, the person impounding shall, within the same time, 
post a like notice in some public place (1) in the town and 
in two adjoining towns. — id. s. 5. 

For form see s. 26, post. For meaning of " public place " 
see p. 36, s. 10 (c). 

6. Payment by owner. If the owner or person claiming 
such creatures pays the penalty or estimated damages and 
charges incurred to the person impounding or to the pound- 
keeper (1), the creatures impounded shall be forthwith 
discharged. — id. s. 6. 

(1) A tender after the writ has been made and put into the hands of the officer for 
service is too late for that suit.— 27 R. 212, Digest, p. 547, s. 5. Payment no waiver, 

see ante, s. 4 (1). 

7. Appraisers, appointment of. If the owner or per- 
son claiming such creatures neglects for the space of (forty- 



POUNDS AND IMPOUNDING. 117 

eight hours, or refuses, to pay the damages estimated, 
either of said parties may apply to a justice, who shall 
notify the other other party to appear at a time and place 
appointed, as early as practicable, and, after hearing the 
parties, shall appoint three disinterested persons to appraise 
such damages. — id. s. 7. 

For forms, see ss. 27, 28, 29, post. 

(a) Though, four days have elapsed, an application for an appraisal of the damage 
may be made without joining with it an application for a sale, and the application for 
a sale be made afterwards. — 15 R. 472, Digest, p. 548, s. 13. 

(b) It is said by Bell, C. J., in 45 R. 475, that the statute imposes no further duty 
on the party distraining, than that of giving notice of the impounding. He has the 
option of proceeding, by appraisal or sale, to obtain payment of his damages, or, if no 
owner appears, he may take the creature out of the pound, and proceed with them as 
strays, under Gen. Sts. c. 130, ante, p. 112. c. 21. See s. 10 (1), and s. 13, post. 

It has been held that an irregular appraisal of damage does not prevent an im- 
pounder from lawfully detaining animals regularly impounded, for the legal charges 
and expenses, until they are paid or tendered.— 36 Vt. 341. 

8. Duties op appraisers. The appraisers shall notify 
the parties, and, as early as practicable, view the place 
where the damage is alleged to be done, hear the parties 
and their evidence, and report to the justice (1) whether 
any damage was done by such creatures at the time of their 
last being in such inclosure only, and the sum at which 
they estimate the same ; and such report, signed by a ma- 
jority (2) of the appraisers under oath (3), shall be con- 
clusive upon the parties. — id. s. 8. 

For forms, see ss. 30-37, post. 

(1) The justice is the depositary of the report, and no notice of the time and place 
where the report will be delivered to him need be given to the parties.— 33 R. 318, Di- 
gest, p. 548, s. 19. 

They are not limited to the amount of damage claimed by the owner of the close in 
his notice to the party ; and they may allow for damage done by the cattle to personal 
property ui>on the premises. — 18 Pick. 422. 

(2) All must act. though a majority may decide. — 45 R. 472, Digest, p. 548, s. 14. 

(3) An objection that they were not sworn before issuing the notices was held 
waived in 45 R. 472, if not taken at the hearing. But the statute does not seem to re- 
quire that they be sworn except to their return. The oath, if administered before, 
would be that they will faithfully and impartially discharge and perform their duty as 
appraisers, etc. See s. 32, post. 

9. Payment by owner op cattle. Upon payment of the 
damages so appraised and the charges incurred, with the 
fees of the justice and appraisers, to be assessed by the 
justice, such creatures shall be discharged from pound. — id. 

s. 9. 

(1) It has been held that if the proceedings are regular upon their face the pound- 
keeper, without such payment, is not liable to an action by the owner of the cattle, 
though there was in fact no cause for the taking.— 5 Cush . 263. 

10. Sale, application for. If such creatures remain in 
the pound four days after the day of notice given or posted 



118 POUNDS AND IMPOUNDING. 

as aforesaid, the person impounding (1) may apply to a 
justice for an appraisal of the damages, if no appraisal has 
been made, and for an order for the sale or appraisal of 
such creatures. — id. s. 10. 
For forms, see ss. 33-37, post. 

(1) Mere delay of the party distraining, to obtain an order of sale, does not make 
him a wrong-doer ab initio — 45 R. 472, Digest, p. 548, s. 16. See s. 1 (1), s. 7 (b). 

11. Order for a sale. The justice, after notice and 
hearing the parties, may order such creatures, or so many 
of them as may be necessary, to be sold at auction by the 
person impounding ; and he shall give notice and proceed 
in such sale as sheriffs should do in sales upon execution ; 
or he may order (1) them to be appraised as the damages 
are required to be appraised, in which case the person im- 
pounding shall take them to his own use at the appraised 
value. — id. s. 11. 

For forms, see ss. 35-37, post. 

(1) The judgment or decree of forfeiture by a justice of the peace should show that 
the prior proceedings had been such as to give him jurisdiction.— 17 Maine, 191 ; 44 
R. 214. He has no jurisdiction if the pound-keeper had lost his legal control over the 
cattle.— 44 R. 211, ante, s. 2 (1) : see 12 Cush. 98; 4 Gray, 312. Notices for the sale 
should not be posted until a return of the appraisal of damages.— 21 Pick. 55. 

12. Overplus. After payment of the penalty or dam- 
ages and costs, the overplus of such sale or appraisal shall 
be paid to the owner upon request. — id. s. 12. 

13. Strays, when cattle are. If after four days no 
owner appears, or, if after an appraisal or order of sale 
any of the creatures impounded remain unclaimed, the 
person impounding may take such creatures out of the 
pound and proceed with them (1) as strays. — id. s. 13. 

(1) See ante, p. 112, c. 21. 

14. Pounds to be maintained. Every town shall main- 
tain a good and sufficient pound ; and if any town neglects 
to maintain such pound, they shall forfeit thirty dollars for 
each year they shall be destitute thereof, to the person who 
will sue therefor.— Gen. Sts. p. 271, c. 129, s. 14. 

A town is liable for a neglect to keep a pound in repair 
as well as for a neglect to build one. — 2 R. 105, 12 R. 
266, Digest, p. 244, ss. 24-26. And it is not necessary that 
the year commence at any particular time. — id. 

15. Pound-breach and rescue. Any person rescuing 
any creature from the possession of any other driving or 



POUNDS AND IMPOUNDING. 119 

about to drive the same to pound, or making any pound- 
breach, or in any way conveying or delivering any creature 
out of any pound without authority, shall be fined twenty 
dollars, or imprisoned not exceeding six weeks. — id. s. 15. 

(a) The conveying away, or setting at large cattle impounded, is an essential part 
of the offense of pound breach ; but the offense of conveying and delivering may per- 
haps be committed without pound breach ; as wben one finds his cattle within the in- 
closure and the gate not yet closed. — 38 R. 543, Digest, p. 228, s. 168. 

To constitute the offense of rescue, under our statute, it must appear that the prop- 
erty was wrongfully taken from the party who had at the time the legal custody of it. 
—42 R. 469, 470, Digest, p. 228, s. 169. See 5 Pick. 514 ; 17 Mass. 342. 

An impounder of cattle has a right to use the same force to maintain his possession 
of them, that a sheriff has to protect his possession of property taken by him on legal 
process.— 36 Vt. 341. 

After a cow legally impounded had been rescued, the owner of the cow met the per- 
sons by whom she had been released while they were engaged in driving her towards 
his house, with full knowledge of the facts, and aided them in so driving her. Held, 
that he was liable for the breach of the pound. — 17 Pick. 415. 

16. Retaking. The pound-keeper or person impound- 
ing may retake, within six days, any creature conveyed or 
delivered out of the pound without authority, and again 
impound and detain the same until the damages and costs 
are paid, with the additional cost (1) of such retaking, or 
the same is otherwise legally released. — id. s. 16. 

(1) Upon a recaption, after a pound-breach, the costs for recaption are the same as 
those upon the original impounding, and the defendant and the pound-keeper are lim- 
ited to the fees specified in ss. 19-21, jJost. — 27 R. 212, Digest, p. 547, s. 6. 

A recaption does not purge the rescue.— 17 Mass. 342. 

IT. Refusing to give up cattle. If any creature so il- 
legally conveyed out of any pound is in any person's 
inclosure, and he refuses to deliver the same to the pound- 
keeper or person who first impounded the same, upon 
demand, such refusal shall be sufficient evidence to convict 
such person of having released said creatures from the 
pound. — id. s. 17. 

18. Sustenance of cattle. The pound-keeper, if there 
is any, otherwise the person impounding, shall cause the 
creatures impounded to be provided with suitable food and 
drink, and upon neglect shall be liable to the owner for all 
damages arising therefrom. — id. ,s. 18. 

(a) One who impounds cattle is bound to feed and water them as often as usage and 
good husbandry require. — 13 Pick. 384. As to place, see s. 2 (1), ante. 

A person who impounds a beast, taken damage-feasant, in a town pound, is not 
liable for any injury received by the beast from other cattle confined in the same 
pound— 9 Pick. 14 ; nor for the neglect of the pound-keeper in not providing susten- 
ance, or his ill treatment of them.— 12 Met. 198, 207 ; 12 Cush. 98 ; 4 Gray, 312. 

19. Allowance for. The sum to be allowed (1) for 
sustenance of creatures impounded shall be, for cattle and 



120 POUNDS AND IMPOUNDING. 

horses above one year old, thirty cents per day ; for all 
other creatures, fifteen cents per day, each. — id. s. 19. 

(1) Seepost, s. 20 (1). 

20. Fees of pound-keeper. The fees to be paid (1) to the 
pound-keeper shall be five cents each for every creature 
impounded, except sheep, which shall be two cents each, 
including the putting in and letting out, and the same fees 
in case of creatures retaken after pound-breach. — id. s. 20. 

(1) The statute does not say by whom, but probably by the person impounding (2 7 
~R. 212) ; but it has been held that the impounder is not liable in assumpsit to the pound- 
keeper for his fees.— 23 Vt. 269 ; but see Digest, p. 49, s. 13, 17 R. 260, as to fees of 
road commissioners. 

21. Of person impounding. The fees to the person im- 
pounding shall be six cents a mile for travel from the place 
of taking to the pound, and four cents a head for driving, 
if more than one mile, otherwise two cents a head ; for 
each notice twenty-five cents, and four cents a mile for 
travel from the pound to the place where such notice is 
given or left ; and the same fees in case of creatures re- 
taken after pound-breach. — id. s. 21. 

22. The form of an estimate under s. 3, ante, may be : 

To the Pound-keeper of the town of : 

The following is an estimate of the damage done by one 

, by me taken up, doing damage in my inclosure, in 

said town, and this day impounded in the public pound, 
and the fees and charges incurred, viz. : 

Damage done by said , . . $ 

Travel from said inclosure to pound, at 

6 cts. a mile, 

Driving said to the pound at 4 cts. 

a mile, 

Notice (1) to the owner of impounding, . .25 

Travel from pound to serve said notice 

at 4 cts. a mile 

Paid pound-keeper for impounding, . . . 
Dated at said , this — day of , 18 — . 



(1) This item should not be included unless notice to the owner has been given at 
the time the estimate is left. If notices are posted, the owner being unknown, this 
item will be for posting notices, $ .50, and for the travel to post the same. 

For fees, see ss. 20, 21, ante. 



pounds and impounding. 121 

23. If the animal was taken up in the highway. 
To the Pound-keeper of the town of : 

The following is an estimate of the penalty incurred for 

one , by me found going at large, in the highway in 

said town, near , and taken up and impounded in 

the public pound, and of the fees and charges incurred, 
viz. : 

Penalty incurred by the owner of said, 

, under a by-law of said 

town, $ 

Travel, etc., etc., as in s. 22, ante, . . . 

24. The form of a notice under s. 4, ante may be : 

To , of the town of : 

You are hereby notified that I this day found one 



[describe the animal, giving any peculiar marks, so that 
the one intended may be readily known] , belonging to you, 

doing damage in my [describe the place, whether 

field or pasture, and where situated, and giving the name, 
if any, by which it is commonly known. The description 
need not be minute, but should be such that the place can 
be readily ascertained from the notice], in the town of 

, and took up and impounded the same in the public 

pound [or, "in my barn-yard near my dwelling-house "], in 
said town. The following is my estimate of the damage done 
by said , and the fees and charges already incurred : 

Damage, etc., etc., [as in s. 22, ante, adding for 
the keeping for one day ; as to which, see s. 19, 
ante.~\ 
Dated at said , this — day of , 18 — . 



If not given to the owner, the notice, instead of the 
words " belonging to you," would be, " last in your keep- 
ing." 

25. If the taking was in the highway the form may 
be: 

To , of the town of ; 

You are hereby notified that I, this day, found going at 
large, in the public highway, leading from to , in 



122 POUNDS AND IMPOUNDING. 

the town of , near [state the locality] , one 

[describe the animal as in s. 24, ante], belonging to 

you [or, " last in your keeping "] , and took up and impounded 
the same in the public pound in said town. The following 

is my estimate of the penalty incurred for said , by 

a by-law of said town, and the fees and charges : 

Penalty so incurred, $ 

Travel, etc., etc., [as in s. 22, ante, add- 
ing the keeping for one day,] 
Dated at said , this — day of , 18 — . 



26. The notice if posted may be : 

NOTICE OF IMPOUNDING. 

I this day found, etc., etc., [as in s. 24 or 25, ante,] mak- 
ing the necessary changes, and instead of the words in 
italic, in s. 24, use the words — the owner of which is un- 
known. 

27. An application by the owner of the close, under s. 
7, ante. 

To , a Justice of the Peace in and for the county 



of 



A B , of , in said county, respectfully 

represents that on the — day of -> last, he found one 

[describe the animal as in the notice, ante, s. 24], 

belonging to , of the town of , doing damage 

in his inclosure [describe it as in the notice, ante, s. 24], 

in said town of , and took up and impounded the 

same, in the public pound in said , and left with the 

pound-keeper of said pound an estimate in writing of the 

damage done by said ■, and the amount of the fees and 

charges then incurred, and on the — day of last, 

within twenty-four hours of said impounding, he also 

caused a notice in writing describing the said , and 

stating his estimate of the damage done and the time 

when and the place where the same was done by said , 

and the amount of fees and charges then incurred, and the 

place of impounding, to be left at the abode of 

aforesaid, the owner of said ; but the said has 

neglected for the space of forty-eight hours from said no- 



POUNDS AND IMPOUNDING. 123 

tice, and still neglects, to pay the damages estimated, afore- 
said, which are the sum of dollars ; wherefore 

the said A B prays said justice to appoint three 

disinterested persons to appraise such damages. 

Dated at said -, this — day of , 18 — . 

A B . 

28. The form of notice by the justice may be : 
To , of in the county of: 

Pursuant to an application, a copy of which is hereto 
annexed, to me a justice of the peace in and for said coun- 
ty, you are hereby notified to appear at , in the town 

of , in said county, on the — day of next, at — 

o'clock in the noon, when and where you may be heard 

upon said application. 

Given under my hand this — day of , 18 — . 

, Justice of the Peace. 

29. The form of an appoimtment to appraise may be : 

To , of , in the county of : 

Pursuant to an application by A. B , of , 

in said county, to me a justice of the peace in and for 
said county (the parties having been fully heard thereon), 
you are appointed to appraise the damage done by one 

, belonging to , of , in said county, on 

the — day of last, in the inclosure of said A 

B [describe the inclosure], in said . You 

will notify the parties and as early as practicable view the 
place where the damage is alleged to have been done, hear 
the parties and their evidence, and report to me whether 
any damage was done by such creature at the. time of its 
being last in said inclosure, and the sum at which you es- 
timate the same. 

Given under my hand at , in said county, this — 

day of , 18 — . 



, Justice of the Peace. 

Oath of appraisers, see ante, s. 8 (3), and s. 32, post. 
30. Notice by the appraisers may be : 

To ,of , in the county of- 



Pursuant to a warrant, (a copy of which is hereto an- 



124 POUNDS AND IMPOUNDING. 

nexed) to the undersigned, by , a justice of the peace 

in and for said county, you are hereby notified to appear 

at , in the town of , on the — day of 

next, at — o'clock in the noon, when and where you 

may be heard on the subject of the damages in said warrant 
mentioned. 

Dated at , in said county, this — day of , 

18—. 



•, > Appraisers. 



31. The return of appraisal upon the warrant may be : 

To , a Justice of the Peace in and for the county 

of •• 

Pursuant to the within warrant we notified the parties 

to appear at , in , in said county, on the 

— day of instant, at — o'clock in the noon, then 

and there to be heard upon the subject of the damages in 
said warrant mentioned, at which time and place we heard 
the parties and their evidence, and also viewed the place 
where said damage is alleged to have been done, and do 
now report to the said justice that damage was done by 

the , in said warrant mentioned, at the time of its last 

being in such inclosure, which was On the — day of 

last, and we estimate said damages, done by said , at 

that time only, at the sum of dollars. 

Given under our hands, this — day of , 18 — . 



-, > Appraisers. 



32. G ss. , 18 — . Then appeared the 

said and made oath that they had 

faithfully and impartially discharged and performed their 
duty as appraisers under the appointment in the foregoing 
report mentioned, and that said report and estimate of 
damages are in their belief just and true. 

Before me, 

, Justice of the Peace. 



POUNDS AND IMPOUNDING. 125 

33. An application for a sale or appraisal may be : 

To , a Justice of the Peace in and for the 

county of : 

B , of , in said county, respect- 



fully represents that [proceed as in s. 27, ante, to the words 

" but the said has neglected," etc., and instead 

say as follows : ] but the said has remained in said 

pound more than four days from the day of the giving of 

the notice aforesaid ; wherefore the said A B 

prays for an appraisal of the damages done by said 

as aforesaid (no appraisal having been made), and for an 

order for the sale or appraisal of the said . 

Dated at said , this — day of , 18 — . 

A B . 



Notice by the justice may be given as in s. 28, ante. 

34. Order for an appraisal ; return ; forms of. 

Upon an application as in s. 33, ante, the justice may 
appoint appraisers of the damage and of the animal, or he 
may appoint appraisers of the damage and make an order 
for a sale. An appointment for both purposes mentioned 
may be as in s. 29, ante, to the close, adding, " And you 

will also appraise the said at its just value and make 

a report to me of such appraisal." 

Given under my hand, at , in said county, this — 

day of , 18 — . 

— , Justice of the Peace. 

The appraisers under such a warrant may give notice as 
in s. 30, ante, and make a return as in s. 31, ante, making 
the necessary changes, adding to their return as in s. 31, 
ante, after the word u dollars," as follows : " And we have 

also appraised the said , at the sum of dollars, and 

no more." 

Given, etc., (as in s. 31.) 

The certificate of the oath in such a case would be as in 
s. 32, ante, inserting after the word " damages" the words 
" and appraisal." 

An appointment to appraise the damages only will be as 
in s. 29, ante, and the subsequent proceedings as in ss. 30- 
32. 



126 POUNDS AND IMPOUNDING. 

35. An order for a sale may be as follows : 

[l.s.] To A — B — , of — , in the county of : 

Upon the foregoing application I notified the parties to 

appear at , in said county, on the — day of , 

instant, at — o'clock in the noon, then and there to be 

heard upon the said application, [and appointed three disin- 
terested persons as appraisers of the damage alleged to have 
been done as aforesaid, who, after hearing the parties and 
their evidence, and viewing the place where said damage is 
alleged to have been done, by their report under oath, by 
them signed, found and returned, that damage was done by 

the , in said application mentioned, at the time of 

its last being in the inclosure in the said application men- 
tioned, which they estimated at the sum of dollars,] and 

now having fully heard the parties at the time and place by me 
notified as aforesaid, I find that the allegations in said ap- 
plication are true, and do therefore order that after having 
posted up notices of the time and place of sale at two of the 

most public places in the said town of , forty-eight 

hours before the time of sale, you then and there sell 

the , in said application mentioned, at public 

auction, to the highest bidder ; giving notice and selling 
as sheriffs may do upon execution ; and after deducting the 
damages and costs, the overplus of such sale shall be paid 

to the owner of said , upon request. 

Given under my hand and seal at , in said county, 

this — day of , 18 — . 

, Justice of the Peace. 

36. An application for a sale, after an appraisal, may 
be as in s. 33, ante, to the word " aforesaid," and then pro- 
ceed as follows : 

And the said A — B — further represents that the dama- 
ges done by the said , at the time of its last being in 

said inclosure only, as aforesaid, have been duly estimated 
and returned under oath by three disinterested persons duly 
appointed as appraisers, at the sum of dollars ; where- 
fore he prays for an order for the sale or appraisal of the 
said . 

Dated at said , this — day of , 18 — . 

A— B— . 



FLOATING TIMBER. 127 

An order for a sale upon such an application may be as 
in s. 35, omitting the part in brackets. 

37. If more than one animal has been taken, the order 
should be for the appraisal, or sale, as the case may be, of 
said animals, "or so many of them as will be sufficient to 
pay the damages and costs." And a sale of more than is 
necessary will be wrongful. — 24 K,. 237 ; Digest, p. 601, 
s. 132. 



CHAPTER XXIII. 



FLOATING TIMBER. 



Action for damages and expenses, 

ss. 5, 7. 
Advertising timber, s. 2. 
Assessment of damages, ss. 3, 5. 
Case, action of for damages, s. 5. 
Damages, action for, ss. 5, 7. 

Assessment of, ss. 3, 5. 

Payment of, ss. 4, 6, 7. 
Detention of timber, ss. 1, 6. 

Wrongful detention, s. 8. 
Expenses and damages, ss. 2, 3, 5, 6, 7. 



Forfeiture of timber, s. 5, s. 5 (1). 
Improved land, logs upon, ss. 1-6. 
Larceny of timber, what, is, s. 9. 
Penalty for stopping timber, s. 8. 
Removal of timber by owner, s. 4. 

If not within seven months, s. 5. 
Selectmen, duties of, s. 3. 
Stealing timber, what is, s. 9. 
Stopping timber, penalty for, s. 8. 
Unimproved land, logs upon, ss. 6, 7. 



1. May be detained. The owner of improved land may 
detain logs or timber of any kind lodged thereon by the 
waters of any river or stream, until the damages occasioned 
to such land thereby and by the removal thereof, and the 
expenses of advertising the same, are paid. — Gen. Sts. p. 
273, c. 131, s. 1. 

2. Advertising. Such owner shall advertise ail such 
logs and timber in September, annually, by posting notices 
describing the number thereof and the marks thereon, at 
one of the most public places in the same and two adjoining 
towns, and causing a like notice to be recorded by the town 
clerk. — id. s. 2. 

The form of such advertisement may be as follows : 

FLOATING TIMBER. 

The following described logs and timber having been 
lodged upon my improved land, in the town of >, sit- 
uate upon the river, and bounded [insert a general 

description of the land by which it may be readily known] , 
and left thereon by the waters of said river, will be detained 
by me until the damages occasioned to such land thereby, 
and all lawful fees, expenses and charges, shall be paid, viz. : 



128 FLOATING TIMBER. 

pine logs, marked [insert the marks]. 

spruce logs or timber, marked [insert the marks] 



Meaning of" public place," see ante, p. 36, s. 10 (c). 
Recording by town clerk, see ante, p. 85, s. 42 (c). 

Assessment of damages. If the owner or claimant of 
such logs or timber is dissatisfied with the damages and 
expenses demanded by the owner of such land, the select- 
men, or, if a majority of them are interested, three justices 
may, on application and notice, assess such damages and 
expenses. — id. s. 3. 

The form of such an application to the selectmen may be : 

To the Selectmen of the town of : 

The undersigned respectfully represents that he is the 

owner of logs that have been lodged upon the improved 

land of , in said town, bounded [insert the descrip- 
tion] , by the waters of the river, and that he is dis- 
satisfied with the damages and expenses demanded by the 
said ; wherefore he prays said selectmen to assess 
the just damages and expenses on account of such logs. 

Dated at , this — day of , 18 — . 



Order of notice, service and return, as in s. 10, p. 93, ante. 

Final order as in (a), s. 14, p. 96, ante, to the word oath, 
and then as follows : 

We assess the damages and expenses on account of said 
logs at the sum of dollars. 

Witness our hands at said , this — day of 18 — . 

) Selectmen 
\ of 



The selectmen are to be paid by the owner of the timber. 

4. Removal of timber by owner. On payment or tender 
of the damages and expenses so demanded or assessed, the 
owner of such logs and timber may remove the same at any 
time within seven months after notice is posted as afore- 
said. — id. s. 4. 

5. If not within seven months. If such logs or timber 
are not removed within seven months they shall be forfeited 
(1) to the owner of the land, and he may convert them to 



FLOATING TIMBER. 129 

his own use if they have been advertised as aforesaid ; and 
the owner of the land may recover his damages and expen- 
ses in an action on the case against the owner of such logs 
or timber, or any other person putting the same into the 
river. If such damages and expenses have been previously 
assessed, such assessment shall be conclusive. — id. s. 5. 

(1) The forfeiture is incurred notwithstanding there has been no appraisal of the 
damages and expenses.— 25 R. 245. It has been held that the timber cannot be seized 
after the owner has taken it away. — A K. 338. See Digest, p. 572-3, ss. 8-13. 

6. If unimproved land. If any logs or other timber are 
lodged on the unimproved land of any person, he may 
detain the same until the damages occasioned thereby and 
costs are paid. — Gen. Sts. p. 274, c. 131, s. 6. 

7. Liability of owner of timber. If such logs or tim- 
ber are removed by the owner or any other person, without 
payment or tender of such damages and expenses, he shall 
be liable to the owner of such land therefor and for costs, 
in an action to be commenced within one year, and not 
after. — id. s. 7. 

8. Stopping timber, penalty for. Any person wrong- 
fully stopping any logs or other timber of another, or pre- 
venting them from floating down any river or stream, or 
willfully and fraudulently cutting out or destroying the 
marks on such logs or timber, shall be imprisoned not more 
than thirty days, or fined not exceeding twenty-five dol- 
lars. — id. s. 8. 

9. Stealing timber. Any person willfully and fraudu- 
lently taking and carrying away or otherwise converting to 
his own use, either personally or by others in his employ- 
ment and under his control, any log or other timber of 
another, in any river or stream or on the banks or meadows 
adjoining the same, shall be deemed guilty of larceny. — id. 
s. 9. 

9 



130 



MILLS AND THEIR REPAIRS. 



CHAPTEK XXIV 



MILLS AND THEIR REPAIRS. 



Action for not repairing, s. 1 (a), s. 

12. 
Assent of owners of one half, s. 11. 
Chancery, remedy in, s. 1 (a). 
Costs of rebuilding, s. 12 (a), (b). 

Of suit, ss. 11,12. 
Description of tbe premises, s. 3 (a). 
Guardian, notice to, s. 9. 
Heaking, course of, s. 10. 
Husband and wife, s. 9. 
Joint owners in privilege, ss. 1, 5. 
Lien for cost of repairs, ss. 9, 12. 
Mortgagee in possession, s. 9. 
Neglect to comply witb orders, s. 12. 

To build or repair, ss. 1, 12. 



Notice to known owners, s. 6 (a). 

To persons out of tbe state, s. 7, 8. 

To unknown owners, ss. 7, 8. 
Owners to repair pro rata, s. 1. 
Order for a bearing and forms of, ss. 6-9, 
s. 6 (a). 

For repairs and forms of, ss. 11, 11 (1). 

To rebuild., ss. 11, 11 (a). 
Petitions, to selectmen, ss. 2, 13. 

• Forms of, ss. 4, 8, 12 (a). 
Bents and profits, lien upon, s. 12. 
Request to repair, s. 2 (b). 
Special contracts excepted, s. 14. 
Tenant for life or years, s. 9. 
Toll, bow much allowed, s. 15. 

Penalty for taking more, s. 16. 



1. Repairs pro rata. The necessary repairs on any 
mill, mill-dam or flume owned by joint tenants or tenants 
in common, or owned in severalty when the privilege of the 
water is owned jointly or in common, shall be made by the 
owners in proportion to their respective interests therein. — 
Gen. Sts. p. 265, c. 127, s. 1. 

(a) Action for not repairing, see s. 12, post; Digest, p. 10, ss. 13-16. 

In cases in whicb tbe selectmen cannot act a court of equity bas jurisdiction. 

2. Petition to selectmen. When in the opinion of the 
owner of any part or share of a mill, mill-dam or flume it 
is necessary that it be rebuilt or repaired, and the other 
part-owners neglect to rebuild or repair the same, he may 
apply, by petition in writing, to the selectmen of the town 
in which it is situate, for an order to rebuild or repair. — 
id. s. 2. 

(a) The selectmen cannot order a repair or rebuilding tbat will leave tbe mill-dam or 
flume substantially different.— 9 R. 78, Digest, p. 473, s. 60. 

(b) Tbe owners, if known, should be requested to rebuild or repair before applying to 
the selectmen. 

3. What to contain. The petition shall contain a de- 
scription of the premises, the names and shares of all per- 
sons interested therein who are known, the object of the 
application, and a request for a hearing. — id. s. 8. 



(a) The description of the premises should be certain; and any owner who bas occa- 
sion to proceed under this statute will do well to take good legal advice. 



MILLS AND THEIR REPAIRS. 131 

4. The form of the petition may be as follows : 
To the Selectmen of the town of : 

H M , of said town, respectfully represents 

that he is the owner of one undivided half of a certain saw- 
mill, dam, flume and privileges thereto belonging, situate 

in said and described as follows : [Here insert the 

description.] The other half of the same is owned by J 

C , of said . In the opinion of said H 

M it is necessary that said mill, dam and flume be 

repaired (1) by [insert the repairs deemed necessary] ; yet 

the said J C , though requested to repair the same 

on the day of last, has neglected so to do ; 

wherefore the said H M ■ requests a hearing, and 

that you will order the said owners to repair said mill, dam 
and flume, and specify in what time and manner they shall 
do it, and the proportion of the expense of such repairs and 
of the costs of this petition and the hearing thereon to be 
borne by each. 

Dated at said ■ — , this day of , 18 — . 

H M . 

(1) If necessary to rebuild, the petition will allege that in the opinion of the petitioner 
it is necessary to rebuild, etc., etc. 

5. Joint owners in the privilege. If the parties are 
tenants in common of the privilege of water only, the form 
may be : 

To the Selectmen of the town of : 

Respectfully represents H M , of said town, 

that he is the owner of a saw mill situate in said — 

[here insert the description], and that J C , of 

said , is the owner of a grist mill in said town [insert 

the description], and that the dam and privilege of water 

for said mills are owned by the said H M and 

J C jointly, the^ said J C being the 

owner of one half, and said H M the owner of 

the other half, and that in the opinion of the said H 

M it is necessary that said dam be repaired by, etc., 

(as in s. 4). 

6. Notice. The selectmen shall appoint a time and place 
of hearing, and thereof notify all persons interested, by 
causing a copy of the petition and notice of the time and 



132 MILLS AND THEIR REPAIRS. 

place appointed to be delivered to or left at the abode of 
each, if known and residing in the state, fourteen days be- 
fore the hearing. — Gen. Sts. p. 266, c. 127, s. 4. 

(a) The^rder of notice of service and return, when the other owners are known and 
reside in the state, may be as in ss. 10, 11, ante, p. 93. 

7. If the owner of any part or share is unknown or 
resides out of the state, such copy and notice shall be 
posted in two or more public places in the town, twenty 
days before the hearing, and published. — id. s. 5. 

8. The petition should show whether the owners are 
known or unknown, and whether residing in the state or 
not. All known owners residing in the state should have 
personal notice, although others may be unknown. An 
order of notice may include both classes as follows : 

A hearing upon said petition is hereby appointed at 

in said , on the day of next, at o'clock 

in the noon, and it is ordered that said petitioner give 

notice of said petition and hearing by giving to , 

within mentioned, or leaving at his abode, an attested (1) 
copy of said petition and this order thereon, fourteen days at 
least before the said day of hearing ; and to all others inter- 
ested by posting a like copy in two or more public (2) places 

in said town of , twenty days at least before said day of 

hearing, and causing a like copy and notice to be published 

(3) three weeks successively in the , printed at , 

in the county of , and circulating in the vicinity of the 

mill aforesaid, the last publication to be one week at least 
before the said day of hearing. 

Given under our hands this day of , 18 — . 

) Selectmen 

> of 



A , 18 — . I certify that on the day of 

last, I gave to the within named [or, " I left at the 

abode of the within named "] an attested copy of 

the within petition and order thereon, and on the same day 

I posted a like copy at , and at two public 

places in said town of . I also certify that I caused a 

like copy and notice to be published in the , a news- 
paper printed at — , in the county of , and circu- 



MILLS AND THEIR REPAIRS. 133 

lating iii the vicinity of the mill aforesaid, three weeks suc- 
cessively, being in the issues of that paper of and of 

and of , the last publication being more than one 

week before the said day of hearing. 



(1) The copy may be attested by the person serving it. 

(2) Meaning of " public place"— see ante, p. 36, s. 10 (c). 

(3) Meaning of publication— see ante, p. 4, s. 30. 

H , ss. , 18 — . Then appeared and 

made oath that the above certificate by him signed is true. 
Before me, 

, Justice of the Peace. 

9. Persons under disability. If any person interested is 
a married woman, or tenant for life or years, or mortgagee 
in possession, or under guardianship, the husband, guard- 
ian, tenant or mortagee shall be so notified, and may be 
ordered to contribute as owner, and shall have a lien for 
the sum contributed upon the part or share of the owner, 
on account of whose part or share such sum is paid. — id. 
s. 6. 

10. Hearing. The selectmen shall personally examine 
the premises, hear all persons interested, determine 
whether the mill, mill-dam or flume ought to be re- 
built or repaired, and apportion the expense among the 
several persons interested. — id. s. 7. 

11. Final order. If the selectmen are of opinion that 
the mill, mill-dam or flume ought to be rebuilt or repaired, 
they shall, by writing under their hands, order (1) the 
owners to rebuild or repair, specifying the proportion or 
share of the expense and of the costs of the petition and 
hearing to be borne by each, and the time, and, if they think 
proper, the manner, in which it shall be done. — id. s. 8. 

No such order to rebuild shall be made unless the own- 
ers of at least one-half of the premises to be rebuilt assent 
thereto. — id. s. 9. 

(1) A final order to repair after proceeding as in (a) s. 14, p. 96, ante, to the word 
oath may be: — And having personally examined the premises aforesaid, we are of 
opinion that said mill, mill-dam and flume and privileges thereto belonging [or 
'water privilege'], are owned as stated in said petition, and that the following re- 
pairs are necessar^v and ought to be made [here insert the repairs at length], and 
said J. C. has neglected to make the same. We therefore order said owners to make 

the above repairs within days from the date hereof, in a good and substantial 

manner, each to bear one-half of the expense of the same, and that the cost of this 



134 MILLS AND THEIR REPAIRS. 

petition and hearing shall be borne one-third [or other proportion] by the said H — 

M and two-thirds by said J C . The costs of this petition and hearing 

as taxed and allowed by us, are dollars. 

Given under our hands at said , this — day of , 18—. 

Selectmen 
of 



Recording and filing as in (c) (d), s. 14, p. 96, ante. 

(a) An order to rebuild after proceeding as in (a) s. 14. p. 96, ante, to the word oath, 
may be : — And having personally examined the premises aforesaid, we are of opinion 
that said mill, dam, and flume, and privileges thereto belonging, [or '-water privi- 
lege " J are owned as stated in said petition, and that said mill ought to be rebuilt, and 

that said has [or "have"] neglected to rebuild the same ; and , 

owning one-half of the premises to be rebuilt, having assented thereto, we do order 

the aforesaid owners of said mill to rebuild the same within months from the 

date hereof, in the following manner: [Describe.] We also order that the expense of 
rebuilding and the costs of this petition and hearing shall be borne, etc., etc., [as in (1) 
ante'. 

12. Neglect to comply with order. If any person in- 
terested neglects to comply with such order, any one or 
more of the others may rebuild or repair his part or share ; 
and the cost thereof, upon notice, shall be determined and 
certified by the selectmen, with their charges for the ser- 
vice, and the amount thereof may be recovered of such de- 
linquent, with interest at nine per cent. ; and the person 
paying said cost and charges shall have a lien therefor 
upon such delinquent's part or share and the rents and 
profits thereof, until the amount, with said interest and all 
taxes and repairs, are repaid. — id. s. 10. 

(a) The form of the application may be : 
To the Selectmen of : 

Whereas, on the — day of last, H M , the undersigned, and J 

C , both of said town, were ordered by you to make certain repairs [insert the 

repairs ordered], upon a certain mill, in said town, being [describe it], the expense 

thereof to be borne [state the proportion], the said H M now respectfully 

represents that the said J C has neglected to comply with said order, and 

said H M himself has made said repairs, wherefore he prays that the cost 

of said J C 's part thereof may be determined by you and certified, with your 

charges for the service. 

Dated at said , this — day of , 18—. 

H M . 

Order of notice, service and return, as in s. 10, p. 93, 
ante. 

(b) The final order after proceeding as in (a) s. 14, p. 96, ante, to the word oath, may 

be :— And we find that the said J C has neglected to comply with the order to 

repair aforesaid, and said H W has made the repairs as stated jn said petition ; 

and the cost of the said J C 's part thereof is determined and hereby certih'ed 

by us to be the sum of dollars and cents. Our charges for this service are 

dollars and cents. The costs of the said H W upon this applica- 
tion and hearing, as taxed and allowed by us, are dollars and cents, besides 

our own charges. 

Given under our hand this — day of , 18—. 

) Selectmen 



135 



Filing anl recording, as in s. 14, p. 93, ante. 

13. Mill in two or more towns. If such mill, mill-dam 
or flume is situate in two or more towns, the petition shall 
be to the selectmen of all said towns, and like proceedings 
shall be had before them as a joint board. — id. s. 11. 

14. Special contracts. If the owners of such mill, 
mill-dam or flume have made any special contract in re- 
spect to rebuilding or repairing the same, the decision of 
the selectmen shall be in conformity with such contract. — 
id. s. 12. 

15. Toll allowed. The toll for grinding and bolting 
grain of any kind shall not exceed, for grinding, one six- 
teenth ; and for bolting, one sixty-fourth part thereof. — id. 
s. 12. 

16. Penalty for taking more. The owner of a grist- 
mill, or other person employed therein, who takes more 
than said toll, shall forfeit five dollars, to be recovered by 
action of debt by the person injured, and shall be liable at 
his suit for damages. — id. s. 13. 



CHAPTEE XXV. 



MARRIAGES, BIRTHS AND DEATHS. 



Certificate of notice, s. 3, s. 3 (1). 
Clergyman, authority of, s. 8. 

Duties of, ss. G, 8, 12, 13. 
Clerk of friends, ss. 5, 12, 15. 
Copy, how attested, s. 14. 
Feks, ss. 3, 9, 18. . 
Form, of certificate of notice, s. 3. 

Of notice of intention, s 2. 

Of record of birth, ss. 16, 18 (1). 

Of record of death, ss. 16, 18 (2). 

Of record of marriage, s. (3). 
Justice, may marry, etc., s. 8. 

Duties of, ss. 6, 8, 12, 13. 
Notice to town clerk, ss. 1, 2. 
Parties going oat of state, s. 4. 



Penalties, ss. 4, 6, 21. 
Physician, duties of, ss. 16, 18. 
Proof of birth, death, etc., ss. 15, 22. 
Quaker marriages, ss. 5, 12. 
Record of births, s. 18. 

Of death, s. 18. 

Of notice of intention, s. 1. 

Of marriage, ss. 11, 13. 
Returns, to secretary of state, s. 20. 

To town clerk, ss. 12, 18, 19. 
Secretary to furnish blanks, ss. 10, 19. 
Selectmen, duties of, s. 19. 
Town clerk, duties of, ss. 1, 3, 20. 
Void, marriage is not, when, s. 7. 
Who may solemnize marriages, ss. 5, 
8, 12. 



1. Notice of intention of marriage. All persons resid- 
ing in this state proposing to be joined in marriage shall, 
before their marriage, cause notice of their intention, with 
the full christian- and sur-names, color, occupation, birth- 
places, residences and ages of the parties, their condition, 



136 

whether single or widowed, whether first, second, or other 
marriage, and the full christian- and sur-names, residences, 
color, occupation, and birth-places of their parents, to be 
entered in the office of the clerk of the town (1) in which 
they dwell ; if there be no such clerk in the place of their 
residence, the like entry shall be made with the clerk of 
any adjoining town ; and the clerk shall record such notice 
in a book to be kept for that purpose. — Gen. Sts. p. 331, 
c. 161, s. 4. 

(1) If the parties live in different towns, it seems that the notice need be given in but 
one of the towns.— 35 R. 32. 

2. The notice may be in the following fokm : 



MARRIAGES, BIRTHS AND DEATHS. 



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138 MARRIAGES, BIRTHS AND DEATHS. 

3. Certificate of notice. Such clerk shall deliver to 
the parties a certificate, under his hand, embodying the 
facts in the preceding section required to be entered in his 
office, and specifying the time when notice of intention of 
marriage was entered with him ; which certificate shall be 
delivered to the minister (1) or magistrate who is to marry 
said parties, before he shall proceed to solemnize the mar- 
riage ; and the fee of the clerk, for making the record of 
notice and issuing his certificate, shall be one dollar, to be 
paid by the parties. — id. s. 5. 

The certificate following a transcript of the notice may 
be : 

M , 18 — . I hereby certify that a notice of which 

the above is a copy, of an intended marriage between 

and , was entered with me, this — day 

of , 18—. 

, Town Clerk of . 



(1) If he act in good faith and the certificate is genuine, it will protect him though 
the residence of the parties is falsely stated therein.— 33 It. 32, Digest, p. 150, ss. 5-7. 
A certificate from one of the towns, where the parties reside in different towns, is suffi- 
cient. — id. 

4. Parties going out of the state. When parties liv- 
ing in this state shall go out of it for the purpose of being 
married in another state, and a marriage shall be there 
solemnized, and they shall return to this state to reside, 
they shall file a certificate or declaration of their marriage, 
including the facts required to be stated in the notice afore- 
said, with the clerk of the town where either of them lived 
prior to their marriage, within seven days after their re- 
turn, under penalty of ten dollars, to be recovered for the 
use of any person who will sue for the same. — id. s. 6. 

5. Quaker marriages. Nothing contained in this chap- 
ter shall affect the right of the people called Friends, or 
Quakers, to solemnize marriages in the way usually prac- 
tised among them ; but all marriages so solemnized shall be 
valid. — id. s. 7. 

6. Penalties. If any minister or justice of the peace 
shall join any persons in marriage, without having first re- 
ceived a certificate of the town clerk as hereinbefoie pro- 
vided, he shall forfeit for each offence sixty dollars, to the 
use of the parent, master or guardian of either of the parties 
who shall first sue therefor. 



BIRTHS AND DEATHS. 139 

If any person not authorized by this chapter to solem- 
nize marriages shall join any persons in marriage, with or 
without a certificate, he shall be fined from one hundred to 
three hundred dollars, one-half to the use of the complain- 
ant. — id. ss. 8, 11. See s. 4, ante. 

7. But the marriage is valid in such case, if in other 
respects lawful, and if consummated with the belief on the 
part of either of the parties that they have been lawfully 
married. — Gen. Sts. p. 332, c. 161, s. 13. 

8. Who may solemnize. Marriages may be solemnized 
by any justice of the peace in any county for which he is 
commissioned ; throughout the state by any minister of the 
gospel who has been ordained according to the usages of 
his denomination, resides in this state, and is in regular 
standing with the denomination to which he belongs ; and 
within his parish, by any such minister residing out of the 
state, but having a pastoral charge wholly or partly in this 
state. — id. p. 331, s. 9. 

9. Fee. The persons joined in marriage by any minis- 
ter or justice shall pay such minister or justice one dollar. — 
id. s. 10. 

10. Blanks for registration. The secretary of state 
shall furnish to clergymen and others authorized to marry, 
to physicians, selectmen, town clerks, and clerks of the so- 
ciety of Friends, suitable blanks for recording births, mar- 
riages and deaths. — Gen. Sts. p. 332, c. 162, s. 1. 

11. The record of a marriage shall state its date and 
place of occurrence, the name, residence and official char- 
acter of the person by whom solemnized, the full christian- 
and sur-names of the parties, the age, color, occupation 
and residence of each, the condition (whether single or wid- 
owed), whether first, second, or other marriage ; and the full 
christian- and sur-names, residence, color, occupation and 
birth-places of their parents. — id. 

12. Return. Every person authorized to unite persons 
in marriage must make out a record of every marriage sol- 
emnized before him, and annually in the month of April 
deliver to the clerk of the town where such marriage took 
place such record, or a copy thereof, for the year ending 
on the last day of March preceding. — G^n. Sts. p. 333, c. 
162, s. 2, as amended by s. 49, c. 1, of the Laws of 1868. 

13. The record may follow the certificate of the clerk. 
(s. 3, ante}, in this form : 



140 MARRIAGES, BIRTHS AND DEATHS. 

The above named and described parties were by me 

joined in marriage, this — day of , 18 — , at , 

N. H. 

Attest: C W , Ordained Minister 

at , N. H. 

No other record will be necessary, and at the time stated 
in s. 12 all such papers should be returned to the town 
clerk. 

14. A copy, if returned instead of the original, should 
be certified as follows : 

A true copy of record. 

Attest : C W , Ordained Minister. 

15. Proof or marriage. A copy of the record of any 
marriage certified by any minister, justice, clerk of the 
people called Friends, or town clerk, shall be received in all 
courts and places as evidence of the fact of such mar- 
riage.— Gen. Sts. p. 331, c. 161, s. 12. 

16. The record of a birth shall state its date and place 
of occurrence, full christian- and sur-name, color and sex of 
child, whether living or still-born ; the full christian- and 
sur-names, color, occupation, residence and birth-place of 
the parents.— Gen. Sts. p. 332, c. 162, s. 1. 

17. The record of a death shall state its date, the full 
christian- and sur-name of the deceased, the sex, color, con- 
dition (whether single or married), age, occupation, place 
of birth, place of death ; the full christian- and sur-names 
and birth-places of parents ; and the disease or cause of 
death. — id. 

18. Every physician attending at the birth of any child 
in this state, or in the last sickness and at the time of the 
death of any person dying in this state, shall make a record 
of such birth (1) or death (2) in conformity with the above 
requisitions, and annually, before the fifteenth day of April, 
deliver the same or a copy thereof, for the year ending on 
the last day of March next preceding, to the selectmen of 
the town in which such birth or death may have occurred. 
For his services in recording and making return of each 
birtlf^and death as hereinbefore provided, he shall receive 
from the selectmen the sum of twenty-five cents. — Gen. 
Sts. p. 333, c. 162, ss. 1, 3, as amended by s. 49, c. 1 of 
the Laws of 1868. 



MARRIAGES, BIRTHS AND DEATHS. 



141 




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142 MARRIAGES, BIRTHS AND DEATHS. 

The return may be of the original at the close of the 
year, or a copy attested as in s. 14, ante, map be returned. 

19. The selectmen and assessors of each town, while 
taking the inventory in the month of April, shall ascertain, 
by inquiry of each family or household, the statistics of 
births and deaths in said town during the year ending on 
the last day of March preceding, according to the requisi- 
tions prescribed for blank records of births and deaths in 
the first section of this chapter, and, combining the infor- 
mation thus obtained with that contained in the records 
furnished them by physicians as provided in the preceding 
section, shall enter, upon blanks furnished them for the 
purpose by the secretary of sta^e, separate records of the 
births and deaths occurring in said town during the year 
aforesaid, and deliver such records, annually, on or before 
the last day of April, to the clerk of said town. — id. s. 4. 

20. The clerk of every town shall, annually, in the 
month of May, embody and chronologically record, upon 
blanks in conformity with the requirements of the first sec- 
tion of this chapter, all the information within his control 
going to make full and complete records of all the births, 
marriages and deaths occurring in his town during the 
year ending on the last day of March next preceding ; and 
on or before the second Monday of May, annually, transmit 
certified copies of such records to the secretary of state, 
together with the names, residences, and official stations of 
all such persons as have neglected to make the returns to 
him, in relation to the subject matters of such records, 
which the law required them to make. — id. s. 5. 

21. Penalty for neglect. If any person shall willfully 
neglect or refuse to perform any duty imposed upon him by 
the provisions of this chapter, he shall be fined not more 
than one hundred dollars for each offence, one half for the 
use of the town in which the offence occurred, the other 
half to the use of the complainant. — Gen. Sts. p. 334, c. 
162, s. 8. 

22. Proof of birth, etc. The town clerk's record of 
any birth, marriage or death, or a duly certified copy there- 
of, shall be prima facie evidence of such birth, marriage or 
death, in any judicial proceeding. — id. s. 7. 



SURVEYORS OF WOOD AND LUMBER. 



143 



CHAPTER XXVI 



SURVEYORS AND INSPECTORS OF WOOD AND LUMBER. 



Cla.pboa.rds, sawed and shaved, ss.14,15. 

Exported without inspection, s. 19. 
Cord-wood, number of feet in, s. 1. 

Measurers of cord-wood, s. 2, s. 2 (1). 

Neglect of duty, penalty for, s. 3. 
Culler of staves, choice and duties of, 
ss. 4, 6, 16. 

Fees of culler, s. 18. 

Fraud or neglect, penalty for, ss.21, 22. 
Exporting lumber, without inspection, 

etc., ss. 19, 20. 
Hoops, staves, heading and shooks, 
ss. 5, 16, 17. 

Counted by the decimal, s. 17. 
Merchantable plank, s. 7. 



Measurers of wood, choice and duties 
of, ss. 1, 2, 3. 

Penalty, for exporting without inspec- 
tion, ss. 19, 20. 
For fraud or neglect of inspector, ss. 3. 
21, 22. 

Plank, to be two inches thick, s. 7. 

Round timber, how measured, etc., s. 9. 

Sawed shingles, ss. 10, 12, 13, 19. 

Shaved shingles, ss. 10, 11, 13, 19. 

Ship timber, how measured, s. 8. 

Surveyors of lumber, choice of and 
duties, ss. 4, 5, 7-15. 
Fees of, s. 18. 
Fraud or neglect of, penalty, ss. 21, 22. 



1. Cord-wood. All cord-wood exposed to sale shall be 
either four feet, three feet, or two feet long, including half 
the kerf, and, being well and closely laid together, a quan- 
tity measuring eight feet in length, four in width and four 
in height shall constitute a cord. — Gen. Sts. p. 230, c Ill, 
s. 10. 

2. Measurers of. Measurers of wood shall be chosen 
by each town, whose duty shall be to measure any wood 
when requested, and give a certificate (1) thereof, for 
which service they shall be paid by the purchaser at the 
rate of four cents per cord. — id. s. 11. 

(1) Form, of certificate. 

This certifies that I have this day fairly and properly measured one load of wood 

offered for sale by A B , of , and the same contains one cord and five 

and one half cord feet; and my fees have been paid me by , of , the pur- 
chaser. 

Manchester, Sept. 30, 18 — . 



-, Measurer of Wood- 



3. Penalty for neglect, etc. If any measurer, upon 
tender of his fees, shall unreasonably neglect or refuse to 
measure or certify any wood brought to him for that pur- 
pose, or shall give any false certificate, he shall for each 
offence forfeit five dollars. — id. s. 12. 

4. Surveyors and cullers, choice of. One or more 
surveyors of lumber and cullers of hoops and staves shall 
be chosen by the inhabitants of each town, at their annual 
meeting, who shall be skilled in such business, and hold 
their offices one year and until others are chosen in their 
stead.— Gen. Sts. p. 248, c. 120, s. 1. 



144 SURVEYORS OF WOOD AND LUMBER. 

5. Duties of surveyor. The surveyor of lumber shall sur- 
vey all plank, boards, spars, slit work, shingles, clapboards 
and timber, previous to the sale thereof, and shall measure 
the same if necessary, having due consideration for drying 
and shrinking, making reasonable allowance for rots, knots 
and splits ; he shall mark the same anew to the just con- 
tents thereof, if requested by the seller or purchaser, and 
give a certificate of the quantity and sorts, if required, on 
payment therefor. — id. s. 2. 

Form of certificate, see s. 2 (1). 

6. Duties of culler. The cullers of hoops and staves 
shall view and cull all hoops, staves and heading, previous 
to the exportation thereof, and shall give a certificate of 
the quantity on payment therefor. — id. s. 3. 

Form of certificate, see s. 2 (1). 

7. Plank, thickness of. The standard of thickness of 
merchantable plank shall be two inches, and when any 
plank of a different thickness shall be purchased, it shall 
be admeasured and calculated by that standard. — id. s. 4. 

8. Ship timber. All round ship timber shall be meas- 
ured according to the following rule : namely, a stick of 
timber sixteen inches in diameter and twelve inches in 
length shall constitute one cubic foot, and in the same ratio 
for any other size and quantity ; forty feet shall constitute 
one ton. — id. s. 5. 

9. Round timber. All round timber the quantity of 
which is estimated by the thousand shall be measured ac- 
cording to the following rule : namely, a stick of timber 
sixteen inches in diameter and twelve inches in length 
shall constitute one cubic foot, and the same ratio shall 
apply to any other size and quantity. Each cubic foot shall 
constitute ten feet of a thousand. — id. s. 6. 

10. Shingles. All shingles offered for sale in this state, 
shall be straight, four inches wide, free from shakes and 
worm-holes ; shall be split or sawed in a longitudinal direc- 
tion crosswise the grain, and shall be designated and 
known, according to their quality, as " No. 1," " No. 2," 
" No. 3," or " refuse."— id. s. 7. 

11. " Shaved shingles No. 1 " shall be eighteen inches 
long, seven-sixteenths of an inch thick at the butt-end, shall 
be free from knots and sap, and shall be breasted. — id. 

" No. 2 " shall be at least seventeen inches long, three- 



SURVEYORS OF WOOD AND LUMBER. 145 

eighths of an inch thick at the butt-end, and clear of knots 
and sap. — id. 

" No. 3 " shall be at least fifteen inches long, and three- 
eighths of an inch thick at the butt- end. 

12. " Sawed shingles No. 1 " shall be clear of knots, 
shakes and sap. 

" No. 2 " shall be free from shakes and sap, and clear of 
knots eight inches from the butt-end. 

" No. 3 " shall be free from shakes and unsound knots. 

" Refuse " shall consist of such shingles as will not pass 
inspection for either of the above classes, unless in the 
opinion of the surveyor they shall be so inferior as to be 
worth less than half the price of No. 1, in which case they 
shall be branded " 0."— id. 

13. Bunching and branding. No shingles shall pass 
inspection unless so packed as to contain by admeasure- 
ment one-quarter of a thousand in each round bunch, and 
either one thousand or one-half or one-quarter of a thou- 
sand in each square bunch. Each bunch or bundle shall 
be branded upon the butt, " No. 1," "No. 2," "No. 3," 
" Refuse," or " 0," according to the quality ; and also with 
the abbreviation N. IT., which brand last mentioned shall 
be furnished by the town. — Gen. Sts. p. 249, c. 120, s. 8. 

14. All shaved pine clapboards shall be made of good 
sound timber, clear of sap ; and all shaved clapboards shall 
be free from shakes and worm-holes, straight, well shaved, 
and of the following dimensions : namely, full five-eighths 
of an inch thick on the back, five inches wide, and four feet 
six inches long. — id. s. 9. 

15. All sawed clapboards shall be of the following de- 
scriptions, and shall be known as " clear," "sap clear," or 
" merchantable." 

" Clear clapboards " shall be sawed from good timber, 
and shall not be less than four feet two inches in length, 
five inches in width, and half an inch thick on the back, 
and shall be free from knots, worm-holes, shakes and rots. 
Pine clapboards shall also be free from sap. 

" Sap-clear clapboards " shall be of the same dimen- 
sions and quality as the clear clapboards, but need not be 
free from sap. 

" Merchantable clapboards " shall be of the same length, 
10 



146 SURVEYORS OF WOOD AND LUMBER. 

from four to five inches wide, and shall be free from rots, 
shakes, worm-holes and broken or loose knots. 

Two pieces of either of the above descriptions, neither of 
which shall be less than thirty inches long, or three pieces, 
neither of which shall be less than two feet long, shall be 
allowed and counted as one clapboard ; but there shall be 
at least ninety whole clapboards in every hundred. — id. s. 9. 

16. Staves, shooks and heading and hoops. All white- 
oak butt staves shall be at least five feet in length, five 
inches wide, and one inch and a quarter thick on the heart 
or thinnest edge and e\erj part thereof. 

All white-oak pipe staves shall be at least four feet eight 
inches long, four inches broad in the narrowest part, and 
not less than one inch thick on the heart or thinnest edge. 

All white-oak hogshead staves shall be at least forty-two 
inches long, and not less than three-quarters of an inch 
thick on the heart or thinnest edge. 

All white-oak barrel staves for foreign market shall be 
thirty-two inches long, and for home use shall be thirty 
inches long, and all shall be half an inch thick on the heart 
or thinnest edge. 

All white-oak hogshead and barrel staves shall be at 
least, one with another, four inches in breadth, and none 
less than three inches in breadth in the narrowest part, and 
those of the last breadth shall be clear of sap. 

All red-oak hogshead and barrel staves shall be of the 
same length, width and thickness with the white-oak hogs- 
head and barrel staves aforesaid. 

All staves shall be well and proportionably split. 

All shooks shall be forty inches long, and not less than 
two and a half inches wide at the ends, and full half an inch 
thick when dressed. 

All white-oak hogshead heading shall be one inch thick, 
thirty inches long, and not more than five pieces to one 
head. 

All hogshead hoops shall be made of white oak, brown 
ash, or walnut, of good and sufficient substance, well shaved, 
and either ten, twelve or fourteen feet in length ; the oak 
and ash hoops shall not be less than one inch broad, and 
the walnut hoops not less than three-quarters of an inch 
broad at the least ; all hoops of ten, twelve and fourteen 



SURVEYORS OF WOOD AND LUMBER. 147 

feet respectively, shall be made up in distinct bundles by 
themselves, containing twenty-five hoops each ; and each 
bundle intended for exportation shall be branded on the 
band thereof with the brand of the town whence exported, 
—id. s. 10. 

17. How counted. All hoops and staves shall hereafter 
be counted and sold by the decimal hundred. — id. s. 17. 

18. Fees for inspection. Surveyors and cullers shall 
receive the following fees : for surveying shingles and clap- 
boards, four cents per thousand, to be paid by the buyer ; 
for viewing and culling barrel staves, twenty-eight cents 
per thousand ; for hogshead staves, thirty-four cents per 
thousand ; for pipe staves, forty cents per thousand ; for 
butt staves, forty-five cents per thousand ; for shooks, one 
third of a cent each ; for hoops, fifty cents per thousand ; 
and for heading, thirty-three cents per thousand ; the refuse 
to be counted in all cases as well as the merchantable ; the 
fees for such survey to be paid by the owner, and the fees 
paid for the survey of the merchantable to be by him recov- 
ered of the buyer; for surveying boards, timber, and other 
lumber, eight cents per thousand feet for viewing only, and 
eight cents per thousand feet additional for measuring and 
marking, and in the same proportion in all cases for a less 
quantity. — Gen. Sts. p. 250, c. 120, s. 11. 

19. Exporting without inspection. If any person shall 
export or ship for exportation from this state any boards, 
staves, hoops, shooks, heading, or clapboards, not surveyed, 
culled, inspected and branded according to the provisions 
of this chapter, such person for each offence shall forfeit one 
quarter part of the value of all articles so shipped or expor- 
ted.— id. s. 12. 

20. Without branding. If any person shall export or 
ship for exportation any shingles branded " 0," or not 
branded according to law, he shall forfeit the same or the 
value thereof. — id. s. 13. 

21. Fraud by inspector. If any surveyor or culler shall 
be guilty of any fraud or deceit in the surveying or culling 
of any boards, staves, hoops, shooks, heading, shingles, 
clapboards, or timber, or shall connive at or allow of any 
breach of this chapter, he shall forfeit for each offence thirty 
dollars. — id. s. 14. 



148 



WEIGHERS AND MEASURERS. 



22. Neglect of inspector. If any surveyor or culler 
shall unreasonably refuse or neglect to attend to his duties, 
upon tender of the fees therefor, he shall forfeit for each 
offence three dollars. — id s. 15. 



CHAPTEE XXVII. 



WEIGHTS AND MEASURES. 



ALE OR BEER MEASURES, S. 14, 

Avoirdupois weight, sales by, s. 15. 
Bakeiis, sales by, ss. 23, 24. 
Beef, weighing and selling, ss. 13, 19-22. 
Bushel, what to contain, s. 17, 27. 
Butcher, illegal sales by, s. 22. 
Certificate of weight, s. 16, 20. 
Charcoal measures, s. 18. 
County sealers, duties of, ss. 3, 4. 
Corn and rye, bushel of, what is, s. 27. 
Fees, for sealing, ss. 8, 11. 

For weighing, s. 21. 
Fruit measures, s. 17. 
I'eaped measures, size of, s. 17. 
Hundred weight, what is, s. 15. 
Milk, sold by ale or beer measure, ss. 25, 

26. 
Penalty, upon sealers, s. 12. 



Penalty, for selling illegally, ss. 13, 22. 

For purchasing illegally, s. 22. 

Upon selectmen, s. 5. 
Platform scales, sealing of, s. 8. 
Public weighers, duties of, ss. 16, 20. 
Seal and sealing, s. 9. 

Record of sealing, s. 10. 
Sealer, fees of, ss. 8, 11. 

Penalty for neglect of duty, s. 12. 
Selectmen, duties of, ss. 5, 19. 
State standards, s. 1. 
State treasurer, duty of, s. 2. 
Town sealer, choice of and duties, ss. 6-9. 

Notice by town sealer, s. 7, s. 7 (1). 
Town standards, selectmen to provide, 

s. 5. 
Weighers of beef, appointment of, s. 19 

Compensation and duties of, ss. 20, 21. 



1. State standards. The standard weights and meas- 
ures of this state shall he those received from the United 
States and the ale or beer measures heretofore provided by 
the state treasurer. All scale-beams, weights and meas- 
ures owned by the state shall be deposited and carefully 
kept in his office by the treasurer, and shall be used as 
standards and for no other purpose. — Gen. Sts. p. 227, c. 
110, s. 1. 

2. State treasurer to prove. The state treasurer shall 
try and prove by the state standards all such scale-beams, 
weights and measures as "shall be brought to him for that 
purpose. — id. s. 2. 

3. County sealer. A sealer of weights and measures 
for each county shall be appointed by the governor, with 
advice of the council, who shall safely keep the standard 
scale-beams, weights and measures of the county, shall 
permit them to be used only as standards, and shall cause 
any deficiencies therein to be immediately supplied at the 



WEIGHERS AND MEASURERS. 149 

expense of the county, and shall hold his office until an- 
other is appointed. — id. s. 3. 

4. To try town standards. The county sealer shall 
once in every three years try and prove the standard scale- 
beams, weights and measures of the county by the state 
standards, and shall be allowed for the same a reasonable 
compensation by the county commissioners ; and he shall 
try and prove by the county standards all scale-beams, 
weights and measures brought to him for that purpose by 
any town sealer.- — id. s. 4. 

5. Town standards. The selectmen of each town shall 
provide the town sealer with a full set of scale-beams, 
weights and measures ; and if they shall neglect to provide 
any scale-beam, weight or measure necessary to make such 
full set, after notice of the deficiency and a reasonable time 
to procure the same, they shall forfeit for each offence ten 
dollars. — id. s. 5. 

6. Town sealer. The sealer of weights and measures 
chosen in each town shall carefully keep the town stand- 
ards, and permit them to be used only as standards ; shall 
once in three years cause them to be tried and proved by 
the county sealer, for which he shall be allowed by the 
selectmen a reasonable compensation ; and shall try and 
prove by said town standards all scale-beams, steelyards, 
weights and measures which shall be presented to him for 
that purpose. — id. s. 6. 

Choice and oath of, see ante, p. 76, s. 2. 

7. To give notice. Every town sealer of weights and 
measures shall annually, in the month of April, cause to be 
published (1) or posted notices requiring every person in 
such town to present to such sealer, on a certain day or 
days therein specified, fourteen clays at least after such 
notice, all such scale-beams, steelyards, weights and meas- 
ures as may be by him used for the purpose of buying and 
selling. — id. s. 7. 

(1) Published — see ante, p. 4, s. 30. The posting should be in two or more public 
places in town. See ante, p. 36, 10 (c). 
The form of the notice may be as follows : 

WEIGHTS AND MEASURES. 

All persons in the town of , using scale-beams, steelyards, weights and meas- 
ures for the purpose of buying and selling, are hereby notified and required to present 

the same to the undersigned at , in said town, on the — day of next, from 

— o'clock in the forenoon to — o'clock in the afternoon, in order that the same may be 
tried and proved and sealed according to law. 

Dated at said , this — day of April, 18—. 

— , Town Sealer. 



150 WEIGHERS AND MEASURERS. 

8. Platform scales, etc. Such sealer shall go to and 
there try and prove any local platform or other fixed scales, 
when applied to for that purpose, and shall receive for such 
service a reasonable compensation. — id. s. 8. 

9. Sealing. The county and town sealers shall seal all 
scale-beams, weights and measures found conformable with 
the standards with the seals heretofore used, if any ; other- 
wise the county sealer may use such seal as he may select, 
a description thereof being first lodged in the office of the 
secretary of state ; and the town sealer shall use such seal 
as the town may adopt by vote describing the same (1). 

( 1 ) There should bean article in the warrant "to determine what seal the town 
will adopt, for use by the town sealer." A single adoption is sufficient without an an- 
nual adoption by the town. 

10. Record of. Every sealer of weights and measures 
who shall try and prove any scale-beam, steelyard, weight 
or measure shall keep a record thereof, and of the person 
at whose request they were so tried, and the date thereof, 
in a book provided at the expense of the town or county 
for which such sealer is appointed ; and if requested shall 
give to such person a certificate of the same. — id. s. 10. 

11. Sealers' fees. The state treasurer shall receive ten 
cents, the county sealer shall receive six cents, and the 
town sealer shall receive five cents, for each and every 
scale-beam, steelyard, weight or measure so sealed and 
recorded, to be paid by the party applying. — id. s. 11. 

12. Penalty upon sealer. Any sealer who shall refuse 
or neglect to perform any duty required by law shall forfeit 
for each neglect or refusal ten dollars. — id. s. 12. 

13. Upon seller. If any person shall sell or dispose of 
any goods or merchandise by any scale-beam, steelyard, 
weight or measure not proved or sealed as aforesaid, or 
shall fraudulently sell or dispose of any commodity by any 
scale-beam, steelyard, weight or measure which has been 
sealed but is unjust, he shall forfeit for each offence ten 
dollars. — id. s. 13. 

14. Ale or beer measures. Standard measures for ale 
or beer measure of the capacity of two hundred and eighty- 
two cubic inches to the gallon, and in the same proportion 
for subdivisions of the gallon, shall be provided, where they 
are not already provided, by the state treasurer, county 
sealers and selectmen of towns ; and those of the counties 



WEIGHTS AND MEASURES. 151 

and towns shall be tried and proved as other weights and 
measures are required to be. — id. s. 14. 

15. Avoirdupois weight. When any commodity shall be 
sold by the hundred weight it shall be understood to mean 
the net weight of one hundred pounds avoirdupois ; and 
all contracts concerning goods sold by weight shall be con- 
strued accordingly, unless otherwise distinctly expressed. — 
id. s. 15. 

16. Public weigher, duty of. Every public or town 
weigher of goods or commodities shall weigh the same, and 
certify the weight thereof accordingly ; and for each neglect 
or refusal to do so he shall forfeit five dollars. — id. s. 16. 

Form of certificate, ante, p. 143, s. 2 (1); post, s. 19. 

17. Heaped measures. All measures by which fruit and 
other things, excepting charcoal, are usually sold by heaped 
measure shall be of the following dimensions : the bushel, 
not less than eighteen and a half inches in diameter inside ; 
the half-bushel, not less than thirteen and three-quarter 
inches in diameter inside ; the peck, not less than ten and 
three-quarter inches in diameter inside ; and the half peck, 
not less than nine inches in diameter inside. — id. s. 17. 

18. Charcoal measures. Every basket or other measure 
by which charcoal shall be measured or sold shall be not 
less in its average diameter than twenty inches, and of a 
depth sufficient to contain eighteen gallons level measure, 
which shall be accounted two bushels, or one strike. — id. s. 
18. 

19. Weighers of beef. The selectmen of every town 
where beef cattle are sold for the purpose of market or 
barreling shall appoint one suitable person or more, who 
shall be conveniently situate in such town and not dealers 
in cattle, to be weighers of beef. — Gen. Sts. p. 237, c. 115, 
s. 26. 

Form of appointment and oath, see ante, p. 90, s. 12, p. 
77, s. 7. 

20. Certificate of weight. All beef sold as aforesaid 
shall be weighed by such sworn weigher, and a certificate 
of the weight of all the beef, hide and tallow of each head 
of cattle, unless otherwise requested by the seller, in the 
form following, shall be signed by such weigher, and de- 
livered to the seller on payment of the fees therefor. 



152 WEIGHTS AND MEASURES. 

FORM OP CERTIFICATE. 

This certifies that I have fairly and properly weighed the 

cattle bought by — of from — of 

— , this day of , 18 — . 



Number of head, I I 1 ! 


Beef, .... | ! ! 1 1 


Hide, .... | | | | | 


Tallow, ... 111! 


Total weight, I I ! I 



, Sworn Weigher. 

—id. s. 27. 

21. Fees of weigher. The weigher shall receive for the 
first six head of cattle weighed, seventeen cents per head ; 
for the second six head weighed, twelve and a half cents 
per head ; for all over twelve and under twenty head, eight 
cents per head ; and for all over twenty head, five cents 
per head ; which shall be paid by the buyer of such cattle ; 
and twelve and a half cents for each certificate, which shall 
be paid by the seller. — id s. 28. 

22. Penalty upon buyer and seller. If any butcher 
or purchaser of beef cattle intended for market or barrel- 
ing shall cause any such beef cattle to be weighed contrary 
to the intent of this chapter, he shall forfeit fifty dollars 
for each gfFence, to be recovered by action of debt, one 
half to the use of the prosecutor, and the other half to the 
use of the county ; but nothing herein contained shall pre- 
vent any person from buying or selling cattle on the hoof, 
or from determining the weight of such cattle in any mode 
agreed on by the parties. — id. s. 29. 

23. Bakers, sales by. All soft biscuit offered for sale 
by any baker or other person shall weigh either four or 
eight ounces each ; and all loaves of soft bread shall be of 
the weight of half a pound, one, two, three or four pounds; 
and every loaf or biscuit shall be marked with the weight 
thereof, and with the initials of the christian- and the 
whole of the sur-name of the baker. — Gen. Sts. p. 229, c. 
Ill, s. 1. 

24. Penalty upon. If any baker or other person shall 



PEDDLERS, TRANSIENT TRADERS. 158 

offer for sale any soft biscuit or loaf which does not in 
weight and mark conform to the provisions of the preced- 
ing section, he shall for each offence forfeit ten dollars. — 
id^ s. 2. 

25. Milk shall be bought and sold by ale or beer meas- 
ure, the standard for which, as heretofore established, shall 
be two hundred and eighty-two cubic inches to the gallon, 
and for sub-divisions of the gallon in the same proportion, 
—id. s. 3. 

26. Penalty upon seller. All measures or vessels used 
in the sale or buying of milk shall be tried and proved by 
the standards of beer measure, and the quantity they hold 
agreeably to such standards shall be marked thereon ; and 
any person buying or selling any milk by any other than 
measures so tried, sealed and marked shall forfeit for each 
offence ten dollars. — id. s. 4. 

27. Corn and rye. The standard weight of corn and 
rye shall be fifty-six pounds per bushel ; of corn and rye 
meal, fifty pounds per bushel ; of wheat, beans, peas and 
potatoes, sixty pounds per bushel ; and of oats, thirty 
pounds per bushel ; but sales of either of said articles may 
be made, by express agreement of parties, in any other 
way. — id. s. 5. 



CHAPTER XXVIII. 

PEDDLERS, TRANSIENT TRADERS AND DEALERS IN OLD METALS. 



Dealers in old junk, licensed, s. 7. 

Form of license, ss. 8, 8 (a). 

Record of purchases, etc., s. 9. 

Regulations and restrictions, s. 7 

Where law is in force, s. 11. 
Peddling without license, s. 1. 

Certificate of disability, s. 2 (a). 

Excepted goods, what are, s. 3. 

Excepted persons, s. 2. 



Licensed to peddle, by clerk of court, 

s. 4. 
License to sell old metals, etc., s. 8. 

To sell goods in town, s. 5. 
Minors, purchases of, s. 9. 
Transient trader, s. 5. 

License to, form of, s. 5 (a). 

Notice to take out license, ss. 6, 6 (a). 

Penalty for neglect, ss. 5, 6. 



1. Peddling without license. Every peddler or other 
person going from place to place, either on foot or with a horse 
or otherwise, carrying to sell or exposing for sale any goods, 
wares or merchandise, without license, shall be fined from 
twenty to one hundred dollars.— Gen. Sts. p. 224, c. 108, 
s. 1. 



154 PEDDLERS, TRANSIENT TRADERS 

2. Excepted persons. The preceding section shall not 
apply to any citizen of this state who shall present to the 
clerk of the supreme court a certificate from the selectmen 
of the town in which he resides of his inability to earn a 
subsistence by manual labor, by reason of ill health or de- 
crepitude ; which certificate shall be of no effect till re- 
corded by such clerk, who shall receive therefor twenty- 
five cents. — id. s. 2. 

(a) The form of such certificate may be : 

To the Cleric of the Supreme Judicial Court for the county of : 

We certify that , who resides in the town of — = — , in said county, is unable 

to earn a subsistence by manual labor by reason of ill health [or " decrepitude "]. 

Witness our hands at said , this — day of , 18—. 

Selectmen 
of 



3. Excepted goods. Said section shall not apply to any 
person going about or otherwise selling, or exposing for 
sale, fish, fruits, vegetables, provisions, fuel, carriages, farm- 
ing utensils, live animals, brooms, newspapers, maps, books, 
pamphlets, agricultural products of the United States, or 
britannia, brass, earthen, tin, iron, wooden, glass or stone 
ware, wherever raised or manufactured ; nor to any citizen 
of this state selling any other articles lawfully raised or 
manufactured in this state, except distilled spirits, playing- 
cards, lottery tickets, and jewelry-. — id. s. 3. 

4. License is granted by the clerk of the court for the 
county in which the applicant resides and upon the payment 
of ten dollars. — id. s. 5. , 

5. Transient trader. If any person shall hire or take 
any store, shop or residence in any town for a less time 
than one year, for the purpose of selling, by auction or 
otherwise, any goods, wares or merchandise, without 
license obtained from the selectmen, he shall be fined not 
less than one hundred or more than two hundred dollars, 
for the use of the town ; and every person taking out a 
license for such purpose shall pay for the same, for the use 
of the town, a sum not less than fifty nor more than one 
hundred dollars. — id. s. 9. 

(a) The form of the license may be : 

A B , of , having paid to us, for the use of the town of , 

the sum of dollars, he is hereby licensed to sell goods, wares, and merchandise, 

in said town, by auction or otherwise. 

Witness our hands at said , this — day of , 18—. 

' Selectmen 
"of 



AND DEALERS IN OLD METALS. , 155 

6. Notice to take out a license. If it shall appear to 
the selectmen of any town that any person has hired or 
taken any store, shop, or residence, for the purpose stated 
in the foregoing section, with the intention of occupying 
the same for a less time than one year, they may, by notice 
in writing, require such person to take out a license as if 
he had hired or taken the same for a less time than one 
year ; and if such person shall not take out a license after 
such notice in writing, and upon complaint and trial it ap- 
pears such was the intent of the person, he shall be fined 
as if he had hired or taken the same for a less time than 
one year. — id. p. 226, s. 10. 

(a) The form of such notice may be : 

To of the town of : 

It appearing to us, the selectmen of the town of , that you have taken a store 

["shop " or "residence," as the case may be] with the intention of occupying the same 
for a less time than one year for the purpose of selling goods, wares and merchandise, 
you are hereby required to take out a license for such purpose. 

Dated at said , this day of , 18 — . 

) Selectmen 
\ of 



7. Dealers in old junk. The mayor and aldermen of 
any city, or the selectmen of any town, may license suitable 
persons to be dealers in and keepers of shops for the pur- 
chase and sale or barter of old junk, old metals, or second- 
hand articles, within their respective cities or towns. — Gen. 
Sts. p. 226, c. 109, s. 1. 

8. License to, requisites of. Such license shall desig- 
nate the place where the business is to be carried on, and 
contain such conditions and restrictions as may be pre- 
scribed by such mayor and aldermen or selectmen, and 
shall continue in force until the first day of April next fol- 
lowing, unless sooner revoked. — id. s. 2. 

(a) The form of such license may be : 

A B , of the town of , is hereby licensed as a dealer in and keeper of 

shop for the purchase and sale or barter of old junk, old metals or second-hand articles 

at , now occupied by him in the town of , until the first day of April next, 

unless this license shall be sooner revoked; but subject to the conditions and restric- 
tions following: [Here insert them.] 

Witness our hands at said », this day of , 18 — . 

Selectmen 
of 



9. Dealer to keep record. Every person so licensed 
shall keep a record of all articles aforesaid purchased or 
obtained by him, by barter or otherwise, of any minor, 
specifying the time of such purchase or barter, the number, 



156 



WILD ANIMALS, DOGS AND SHEEP. 



weight, quantity and other description of the articles so 
purchased or bartered, and the name and residence of the 
person offering the same for sale or barter, which shall be 
at all times open to the inspection of the police officers of 
such city or the selectmen of such town. — id. s. 3. 

10. Penalty for dealing without license, etc. Any 
person not so licensed who shall keep a shop or be a dealer 
as aforesaid in any town or city, and any person so licensed 
who shall keep a shop and be a dealer as aforesaid in any 
other place or manner than that prescribed in his license, 
or after notice that his license is revoked, or who shall fail 
to keep a true record, as required herein or in his license, 
or to exhibit the same when required, shall be fined from 
one to ten dollars, or imprisoned from five to thirty days. 
— id. s. 4. 

11. This chapter (i. e. chapter 109) shall be in force 
only in such cities and towns as at any legal meeting shall 
adopt its provisions. — id. s. 5. 



CHAPTER XXIX. 



WILD ANIMALS, DOGS AND SHEEP. 



Assumpsit, action of, by city or town, 
s. 13. 
Against owner of dog, s. 13. 
Against separate owners, s. 7 (1). 
Bounty upon bears, wild-cats and 
wolves, ss. 1, 2, 3. 
Account to be kept by selectmen, s. 4. 
Amount refunded by state, s. 4. 
Form of account of bounties, s. 4 (a). 
Brand or ear mark upon sheep, s. 16. 
Penalty for defacing or destroying, 
s. 17.^ 
Common law, liability of owner of dog, 

s. 7(1). 
Debt, action of against owner of dog, ss. 

7(1), 8. 
DOGS, injuries by, to persons and prop- 
erty, ss. 7, 8. 
Common law liability, s. 7 (a). 
By-laws in relation to, s. 6, s. 6 (1). 
Double damages, action for, s. 8. 
Parent, action by, for injury to child, 

s. 8 (1). 
Separate owners of dogs, liability of, 

B.7(l). 
Single damages, action for, ss. 7, 7 (1). 
Towns may recover, when, s. 13. 
Without collars may be killed, s. 5. 
Not if under immediate care of owner, 
s.5(i). 



Dogs, person killing not to put to his own 

use, s. 5 (1). 
Election of remedies, ss. 7, 8 (1), 14. 
Fishing, when unlawful, s. 19. 
Game and fish, protection of, s. 19. 
Owner of dogs, liability of, ss. 5, 6, 7, 8 3 

9, 13. 
Owner of sheep, etc., actions by, ss. 7, 

8, 13, 14. 
Parents, suits by, for injury to child, 

s. 8 (1). 
Personal injury, double damages for, 

s. 8. 
Rams going at large forbidden, s. 18. 
School districts, distribution to, s. 15. 
Sheep, brand or ear mark upon, ss. 1G, 17. 
When paid for by town, ss. 11, 12, 13. 
Proof of killing to be furnished, s. 11. 
Town orders for, how paid, ss. 11, 12. 
State treasurer to refund bounties, 

S^4. 

Tax upon dogs, selectmen to assess, s. 9. 
Account of, to be kept, s. 10. 
Divided to school districts, when, s. 

15. 
Paid to owners of sheep, when, ss. 11, 
12, 13. 
Town treasurer, duties of, as to dog 
tax, ss. 10-13. 



1. Wolves, bounty on. If any person shall kill any 



WILD ANIMALS, DOGS AND SHEEP. 157 

wolf or wolf's whelp within this state, and shall produce 
the head thereof to the selectmen of the town in which it 
was killed, or, if there be no selectmen in such town, then 
to the selectmen of the nearest town having such officers, 
and shall prove to the satisfaction of such selectmen that 
such wolf or wolf's whelp was killed by himself or by some 
person whose agent he is, the selectmen shall cut off the 
ears from the head so produced, and shall otherwise so dis- 
figure the same that it shall never again be offered for a 
bounty, and shall pay to such person or his order twenty 
dollars for every wolf and ten dollars for every wolf's whelp 
killed as aforesaid. — Gen. Sts. p. 218, c. 105, s. 1. 

2. Bears. If any person shall kill any bear within this 
state, and shall proceed with the same as is directed in the 
first section of this chapter, he shall receive therefor the 
sum of four dollars. — id. s. 2. 

3. Wild-cats. If any person shall kill any wild-cat, 
known by the name of Siberian lynx, within this state, and 
shall proceed with the same in the manner directed in the 
first section of this chapter, he shall receive therefor the 
sum of one dollar.— id. s. 3. 

4. Bounties refunded. The selectmen of every such 
town shall keep a true account of the moneys so paid, and 
the number of each species of animals for which bounties 
have been paid, and upon presentation of such account, cer- 
tified by a majority of such selectmen to be just and true, 
to the treasurer of the state in the month of June, the same 
shall be paid from the state treasury, either to the repre- 
sentative of such town or to the selectmen thereof or their 
written order. — id. s. 4. 

(a) The form of an account for bounties paid may be : 

The State of Neiv Hampshire to the town of debtor : 

18—. Dec. 1. To cash paid for bounty on one bear killed by him in said 

town, $4 00 

18 — . Dec. 5. To cash paid for bounty on one wolf killed by him in said 

town, 20 00 

To cash paid him for bounty on one wolf's whelp killed by him 

in said town, 10 00 



$34 00 
We hereby certify that the foregoing account is just and true. Said animals were 

killed by the said in said town, and their heads were brought to us and by us 

disfigured as required by law. 

Selectmen 
of 



5. Bogs without collars. No person shall be liable by 
law for killing any dog which shall be found (1) not having 



158 WILD ANIMALS, DOGS AND SHEEP. 

around his neck a collar of brass, tin, or leather, with the 
name of the owner carved or engraved thereon. — id. s. 5. 

(1) Trover will lie if the person killing convert the dog to his own use. — 1 Met* 
355. 

The dog probably may not be killed if he is under the immediate care of the owner 
and this is known. See 18 Pick. 262; 10 Met. 382. 

6. Dogs, by-laws for. Any town may make by-laws for 
licensing, regulating or restraining dogs as they shall deem 
expedient, and may affix (1) penalties for the violation 
thereof not exceeding five dollars ; and the sum to be paid 
for a license shall not exceed two dollars. — id. s. 6. 

(1) Whether any penalty could be recovered except against an inhabitant of the 
town, see 10 Met. 382; 6 Cush. 248. 

7. Owners op, when liable. Any person to whom or 
whose property any damage may be occasioned by a dog not 
owned or kept by said person, shall be entitled to recover 
(1) of the person who owns, or keeps, or has said dog in 
possession, all damages which may be so occasioned, except 
in cases where the same have been occasioned to the party 
suffering such damage while engaged in the commission of 
a trespass or other tort. — id. s. 7. 

(1) The action probably must be debt unless knowledge by the defendant of the 
vicious propensities of the dog is shown, which will render him liable at common law. 
See Digest, p. 244, ss. 12, 15. Notice of a single act of mischief is sufficient evidence of 
knowledge.— 16 R. 77 ; Digest, 289, s. 1. See also 10 Cush. 509. 

A joint action will not lie against two separate owners of dogs, although the mischief 
has been done by the dogs jointly. And in an action against each owner he is liable 
only for the injury done by his own dog; but if the dogs were of equal power and there 
are no circumstances to render it probable that greater damage was done by the one 
dog than by the other, each owner may be held for one half.— 20 Pick. 477, 479 ; 2 Con- 
nect. 206. 

8. Double damages. Every owner or keeper of a dog 
shall forfeit to every person injured (1) by it double the 
amount of the damage (1) sustained by him to be recovered 
in an action of debt. — id. 

(1) It is not quite obvious why both sections should have been retained, unless the 
eighth was understood to apply only to a, personal injury to the plaintiff. This section 
however is the same as section 1 of the act of 1863, which appears to have been taken 
verbatim from s. 13, c. 58, of the Mass. Rev. Sts. ; which their court, in 1847, held 
would enable a father to recover for expenses incurred for his minor child that had 
been bitten by a dog.— 12 Met. 291. 

9. Tax upon dogs. The selectmen or assessors of every 
town, when making the annual invoice of taxable estates, 
shall ascertain the number of dogs owned, kept, or harbored 
by any person resident in their town, and shall annually 
assess upon such persons, for every dog so owned, kept, or 



DOGS AND SHEEP. 159 

harbored, if a male, one dollar, and if a female, two dollars, 
to be collected and paid into the treasury of the town as 
other town taxes. — id. s. 9. 

10. Account of to be kept. The treasurer of every town 
shall keep an accurate and separate account of all sums re- 
ceived from taxes upon dogs, which shall at all times be 
open to the examination of any legal voter of such town ; 
and he shall likewise keep an accurate and separate account 
of all sums paid out from the proceeds of such taxes under 
the provisions of this chapter, open to like examination. — 
id. s. 9. 

11. Town orders for sheep, etc. Every person suffer- 
ing loss or damage by reason of the worrying, maiming or 
killing of his sheep, lambs or other domestic animals by a 
dog, may, within thirty days after he knows of such loss or 
damage, present to the selectmen of the town wherein such 
loss or damage happens proof of the nature and extent 
thereof ; and they shall draw an order in favor of the per- 
son suffering such loss or damage upon the treasurer of said 
town for the amount of the same.-^id. . 

The proof should be by affidavits detailing the circum- 
stances of the loss, and those should be kept on file. 

12. Registration and payment. The treasurer of each 
town shall register all such orders at the time of their pre- 
sentation, and annually, on the second Tuesday of March, 
pay them in full, if the gross amount received by his town 
from taxes on dogs, and not previously paid out, shall be 
sufficient for that purpose ; otherwise he shall divide such 
amount pro rata among such orders, in full discharge there- 
of._id. s. 12. 

13. Action by city or town. After such order has been 
drawn, the city or town may recover, in an action of as- 
sumpsit against the keeper or owner of any dog concerned 
in doing the damage or occasioning the loss, the full amount 
of such order. — id. s. 13. 

14. Election of remedy. The owner of sheep, lambs or 
other domestic animals worried, maimed or killed by dogs, 
shall have his election whether to proceed under the pro- 
visions of the preceding section or the seventh section of 
this chapter ; but having signified such election, by com- 
mencing a suit or obtaining an order, he shall not have the 
other remedy. — id. s. 14. 



160 WILD ANIMALS, DOGS AND SHEEP. 

15, School districts, etc. All money arising from the 
taxation of dogs, remaining in. the treasury of any city or 
town on the second Tuesday of March, 1868, and on the 
second Tuesday of March in every second year thereafter, 
which has not been ordered to be paid for damages to do- 
mestic animals agreeably to the provisions of the preceding 
sections, shall be equally divided between the several school 
districts in such town or city, and may be expended for the 
same purposes for which the school money of such districts 
may lawfully be expended. — id. s. 15. 

16. Brand or ear mark. Any person may mark in the 
ear or brand his sheep as he may think proper, and cause a 
description of such mark or brand to be recorded by the 
town clerk of the town in which he resides or in which his 
sheep may be kept ; and the town clerk shall be entitled to 
receive six cents for recording the same. — id. s. 16. 

The form of notice of a brand or ear mark may be : 

BRAND OR EAR MARK UPON SHEEP. 

The undersigned gives notice that he has marked his 
sheep as follows : [Here describe the brand or mark.] 

Dated at , this day of , 18 — . 

A B . 

IT. Penalty for defacing, etc. If any other person 
shall willfully alter, cut out or deface the marks or brand 
of any such sheep, or if any under pretence of marking the 
same shall cut off the ear or ears of any sheep, he shall for- 
feit five dollars, to the use of the person who will sue for 
the same. — id. s. 17. 

18. Rams going at large. If any person shall willfully 
or negligently suffer any ram belonging to him or in his 
care to go at large out of his inclosure, between the first day 
of August and the first day of December in any year, he 
shall forfeit for every such offence the sum of five dollars, 
for the use of any person who will sue for the same or who 
shall impound such animal. — id. s. 18. 

19. Protecting game and fish. See Gen. Sts. p. 506, c. 
251, and Laws of 1868, c. 1, ss. 54-56. 



TITLE IV 



ASSESSMENT AND COLLECTION OF TAXES. 

CHAPTER XXX.— Persons and Property liable to Taxation. 

CHAPTER XXXI.— Where and to Whom to be Taxed. 
CHAPTER XXXII. — Annual Invoice and Assessment. 
CHAPTER XXXIII.— Abatement of Taxes. 
CHAPTER XXXIV.— Collectors of Taxes. 
CHAPTER XXXV.— Collection of Resident Taxes. 
CHAPTER XXXVI.— Collection of Taxes of Non-Residents. 
CHAPTER XXXVII. -Taxation of Railroads. 
CHAPTER XXXVIII.— Bank Stock and Savings Banks. 
CHAPTER XXXIX.— Extents. 

CHAPTER XL.— Return of Inventories to Secretary of 

State. 



CHAPTER XXX 



PERSONS AND PROPERTY LIABLE TO TAXATION. 



Aliens are taxable, s. 1 (a). 
Asses taxable, s. 5, vni. 
Bank stock, s. 5, it, hi, s. 7, i. 

Surplus capital, s. 5, IV. 
Carriages, when taxable, s. 5, vn. 
Cattle, horses and mules, s. 5, viii,ix. 
Double taxation forbidden, s. 7. 
Exempting from taxation, s. 9. 
Insane persons, exempt s. 1, s. 1 (c). 
Manufacturing corporations, s. 9. 
Money, on hand and at interest, s. 5 v. 
Paupers, exemption of, s. 1. 
Personal estate, s. 5. 
Polls, s. l. 



Railroads, stock in, s. 5, n, nr, s. 8. 

Real estate of, ss. 4, 8. 
Real estate taxable, ss. 2, 3, 4. 

Exceptions to this rule, s. 2. 

What it includes, s. 3. 
Savings banks, s. 5, v, s. 7 (1). 
Sheep, s. 5, x. 

Stock, in corporations, s. 5, ii, in, ss. 
7,8. 

In public funds, s. 5, I. 
Stock in trade, s. 5, vi, s. 1. 
Temporary absence, s. 1 (b). 
Toll bridges, s. 3. 
United states stocks, s. 5 (2). 



1. All male polls from twenty-one to seventy years of 
age are liable to be taxed, except paupers and insane per- 
sons. — Gen. Sts. p. 115, c. 49, s. 1. 

(a) Aliens are taxable— 8 R. 572; Digest, p. 164 (h). 

(b) A temporary absence does not exempt from taxation. See ante, p. 47, ss. 13, 14, 15 . 

(c) " Insane," see ante, p. 3, s. 18. 

11 



162 PERSONS AND PROPERTY LIABLE TO TAXATION. 

2. Real estate, whether improved or unimproved, and 
whether owned by residents or others, is liable to be taxed, 
except houses of public worship, school-houses, seminaries 
of learning, and property of the state, county or town, 
other than county and town poor-farms. — id. s. 2. 

3. What is real estate. Buildings, mills, carding-ma- 
chines, factory buildings and machinery, wharves, ferries, 
toll-bridges (1), locks and canals, and aqueducts any por- 
tion of the water of which is sold or rented for pay, are tax- 
able as real estate. — id. s. 3. 

(1) Toll bridges across the Connecticut are taxable in this state. — 8 E. 207. 

4. The real estate of railroads, not used for the ordi- 
nary and usual purposes in operating the roads, and all 
real estate so used for which no part of the capital was 
expended, so that the same may be included in the special 
assessment provided bylaw in the case of railroads, shall be 
appraised and taxed as real estate. — id. p. 116, s. 4. 

5. Personal estate liable (1) to be taxed is, — 

I. Stock in public funds, including all United States, 
state, county, city or town stocks or bonds, not exempt 
from taxation by the laws of the United States (2). 

ii. Stock in corporations in the state, except manufactur- 
ing and railroad corporations. 

in. Stock in corporations located out of the state, owned 
by persons living in the state, which is not assessed and 
taxed to the individuals (3) owning the same by the towns 
where such corporations are located. 

iv. The surplus capital on hand of banking institutions. 

v. Money on hand or at interest more than the owner 
pays interest for, including money deposited in any bank, 
other than a savings bank, or loaned on any mortgage, 
pledge, obligation, note, or other security, whether on inter- 
est, or interest be paid or received in advance (4). 

VI. Stock in trade, whether of merchants, shop-keepers, 
mechanics or tradesmen, employed in their trade or busi- 
ness, reckoning the same at the average value thereof for 
the year ; raw materials and manufactures of any manufac- 
tory, wood, timber, logs, and lumber, manufactured or oth- 
erwise, if exceeding fifty dollars in value, and fishing ves- 
sels, steamboats, horse-boats, or other vessels owned by 
individuals, and navigating the waters of the state for the 



PERSONS AND PROPERTY LIABLE TO TAXATION. 163 

transportation of passengers or freight, for the purposes of 
taxation to be deemed stock in trade (5). 

vii. Carriages, if exceeding fifty dollars in value. 

viii. Horses, asses and mules over eighteen months old. 

ix. Oxen, cows and other neat stock over eighteen 
months old. 

x. Sheep and hogs over six months old. — id. s. 5. 

(1) In this state the statute describes the different classes of personal property to be 
taxed, and no other is taxable. — 46 R. 392. 

(2) All United States bonds, treasury notes, "and other obligations of the United 
States," are exempted from taxation " by or understate or municipal authority." — Act 
of June 30, 1864, ss.l, 13. 

This has been held, by the superior court of Cincinnati, to exempt greenbacks, so 
called. 

No law of the United States or of this state exempts state, county, city or town 
stocks or bonds, and they are all taxable as " stock in public funds." 

(3) It has been held that the stockholder here is not taxable, although the tax out of 
the state was against the corporation, — 37 R. 556; Digest, p. 597, s. 42. 

By the law of Mass., stock of " the inhabitants " of that state in all moneyed corpora- 
tions, within or without the state, is taxable, deducting from the value of the shares 
the value of the machinery and real estate of the corporation, if it is a manufacturing 
corporation (Gen. Sts. of Mass. pp. 74, 76); so that there is no reciprocity. 

(4) An agreement in this form, " Due to S. G. $10,000, to be paid as wanted for her 
support; if no part is wanted, it is not to be paid," is not a promissory note, nor evi- 
dence of a debt, and the holder is not taxable on account of it, if such was the real tran- 
saction.— 28 R. 419, 435. See^os*, chapter 32, p. 172, s. 4 (3). 

(5) Webster's definition of stock as "capital, money, or goods employed in trade," 
sufficiently indicates the meaning of " stock in trade." But when money is thus taxed 
it is not also to be taxed as " money on hand or at interest." 

6. If no dividend. Stock in corporations shall not be 
taxed if the nature and purposes of the corporation be such 
that no dividend of its profits is to be made. — id. s. 6. 

7. Double taxation. No statute provision shall be so 
construed as to subject any stock to double taxation (1). — 
id. s. 7. 

(1) It has been held that if a savings bank own stock in another corporation it is 
not taxable for it. — 46 R. 389. 

8. Railroads and the stock therein shall be taxed only 
in the. mode specially prescribed therefor, except for real 
estate as provided in section four of this chapter. — id. s. 8. 

9. Towns may by vote exempt (1) from taxation, for a 
term not exceeding ten years, any establishment therein , or 
proposed to be erected or put in operation therein, and the 
capital used in operating the same, for the manufacture of 
fabrics of cotton or wool, or of both ; and such vote shall be a 
contract binding for the term specified therein. — id. s. 9. 

(1) Any exemption from taxation of bonds or notes given by the town is wholly unau- 
thorized and illegal. Towns have no authority to tax, or exempt from taxation, except 
in cases provided by statute. 



164 



WHERE AND TO WHOM TO BE TAXED. 



CHAPTEE XXXI. 



WHERE AND TO WHOM TO BE TAXED. 



Action, for money paid for taxes, s. 24. 
Administrator, when taxed, s. 21. 
Affidavit bv owner of lumber, s. 15 (1). 

Of removal before April 1st, ss. 3, 23 (1). 
Animals, to be taxed where kept, s. 11. 
Banks, surplus capital of, s. 4. 
Bark, where taxed, ss. 14, 15. 
Corporations, how taxed, s. 8. 
Description of land taxed, ss. 16, 17, 

18, 19 (2). 
Education, residence for, s. 2. 
Estates of persons deceased, s. 20. 
Fishing vessels, s. 9. . . 
Guardian, when taxable, s. 21. 
Joint tenants, s. 18. 
Lien for tax, ss. 11 (1), 16. 

For money paid for tax, s. 24. 
Logs, where taxed, ss. 13-15. 
Lumber, where taxed, ss. 13-15. 
Manufacturing corporations, s. 5. 
Mistake in corporate name, s. 8 (1). 
Notice of intention to tax, s. 14. 
Occupant, consenting to be taxed, ss. 10, 
11 (1). 

Refusing to be taxed, ss. 16-19. 
Personal property taxed to owners, 
ss. 10-13. 



Personal property taxed. 

To person in possession, ss. 10-13, 24. 
Railroads, ss. 5, 13. 
Real estate taxed to owner, ss. 10, 
16-18. 

Non-resident improved, ss. 17, 18. 

To occupant, ss. 10, 16, 24. 

Unimproved, non-resident, s. 19. 
Removal after 1st of April, s. 3. 

Before 1st of April, ss. 22, 23. 
Residence for taxation, what is, s. 

1(1). 
Savings banks, ss. 5, 10 (a). 
Stud horses, ss. 25, 26. 
Stock in corporations, s. 5. 

In banks, s. 7. 

In manufacturing corporations, s. 5. 

In public funds, s. 6. 

In railroads, ss. 5, 13. 
Stock in trade, ss. 11, 13. 
Taxed elsewhere, ss. 15, 23. 

Certificate of, s. 23 (1). 
Tenants in common, s. 18. 
Timber, ss. 13, 14, 15. 
Trustee, s. 21. 
Voting and taxing, s. 1 (a). 
Wood, ss. 13-15. 



1. At place of residence. Every person shall be taxed 
in the town in which he is an inhabitant or resident (1) 
on the first day of April, for his poll and estate, except in 
cases otherwise provided by law. — Gen. Sts., p. 117, c. 50, 
s. 1. 

(1) The residence intended is not the personal but the legal residence, where those 
differ. See ante, p. 49, s. 13. 

2. For education only. Residence in any town, merely 
for the purpose of obtaining an education at any literary 
institution, shall not subject the person so residing to 



See ante p. 54, s. 33. 
of april. If any person 
the first day of April, he 
the town from which he 

49, s. 14 (3). 



taxation in such town. — id. s. 2. 

3. Removal after the first 
removes from town on or after 
shall pay his taxes that year in 
removed. — id. s. 3. See ante, p. 

4. The surplus capital on hand in banking institutions 
shall be taxed in the towns wherein such banking institu- 
tions are located. — id. s. 4. 

5. Stock in corporations, except railroads, manufactur- 
ing corporations and banks (1), though pledged, mort- 
gaged, or assigned as security, shall be taxed to the general 



WHERE AND TO WHOM TO BE TAXED. 165 

owner thereof in the town in which he resides, if in this 
state ; otherwise to the corporation in the town in which 
its principal office or place of business in the state is. — id. 
s. 5. 

(1) See s. 7. 

6. In public funds. United States, state, county, city 
or town stocks or bonds, not exempt from taxation by the 
laws of the United States, shall be taxed to the owner in 
the town where he resides. — s. 6. 

7. In banks. All shares of the capital stock of the banks 
located in this state, whether private, state or national, 
shall be taxed at their par value, to the owners thereof, in 
the town in which they reside, if in this state. All shares 
standing in the names of persons residing out of this state 
shall be taxed to the person in whose name such shares 
may stand in the town where the bank is located ; and such 
taxation shall create a lien in favor of the town where such 
bank is located upon such shares for the payment of said 
taxes. — Laws of 1868, c. 15, s. 1. See c. 38, post. 

8. Taxable property of' corporations, and property 
taxable to corporations, shall be taxed to the corporation by 
its corporate name (1), in the town in which it is located, 
except where other provision is made. — Gen. Sts. p. 117, c. 
50, s. 8. 

(1) An immaterial variation in the corporate name will not vitiate the tax. — 7 R. 309. 

9. Fishing vessels employed in any business or trade 
transacted at any port, and sailing from or returning to 
such port to discharge their cargo, shall be taxed in the 
town within which such port is as stock in trade ; but this 
provision shall not apply to fishing vessels owned in the 
state which sail to and from and whose business is done at 
ports or places out of the state. — id. p. 118, s. 10. 

10. To owner or person in possession. Real and per- 
sonal property shall be taxed to the person claiming the 
same, or to the person who is in the possession and actual 
occupancy thereof, if such person will consent to be taxed 
for the same ; but such real estate shall be taxed in the town 
in which it is situate. — id. s. 11. 

(a) Real estate belonging to a savings bank is taxable to the bank in the town or 
place where the real estate is situated.— 46 K. 389; Digest, p. 597, s. 47. 

(b) The occupant thus taxed with his consent becomes personallv liable for the tax, 
and non-pa ynient of it will prevent his gaining a settlement.— 45 R, 564; Digest, p. 20, 
S6. 49, 50. 



166 WHERE AND TO WHOM TO BE TAXED. 

11. Animals liable to be taxed kept in any town, and 
stock in trade employed in any town, owned by a person 
not resident therein, shall be taxed in such town to the 
owner or person having the care (1) thereof on the first day 
of April, whether such person be a resident in the town or 
not. — id. s. 9. 

(1) Consent of the person having the care of animals kept in town, or of stock in 
trade employed in any town, owned by a person not resident therein, to be taxed for 
the same, shall not be necessary to a valid tax against him for the same, but he shall 
have a lien thereon for the amount of such tax paid by him.— Laws of 1868, c. 1, s. 12. 

12. Unorganized places. Personal property being on 
the first day of April in any unorganized place, the owner 
of which resides in an organized town or place, may be 
taxed to the owner in the town or place where he resides. — 
id. s. 12. 

13. Wood, bark, timber, logs and lumber (1), manufac- 
tured or other, exceeding fifty dollars in value, shall be 
taxed at its full value in the town where it is on the first 
day of April, to the owner, if he then resides in such town ; 
otherwise to the person having it in his care or custody on 
that day ; and any person or» corporation permitting such 
property to be laid on their premises shall be deemed to 
have the same in their care or custody, and shall have alien 
on the same for the payment of said taxes. — id. s. 13. 

(1) Such property, when stock in trade, is properly taxed under s. 11 ante. 
If a part of the wood or lumber of a railroad corporation be purchased for its own 
'use, it is taxable only under chapter 37 post. See 47 R. 62, 70. 

14. Notice. Such property shall not be taxed to the 
person or corporation permitting the same to be laid upon 
their premises, unless one of the selectmen or assessors, 
prior to or at the time of their taking the invoice, gives 
notice in writing to such person or corporation, or to the 
agent or tenant of such person or corporation having the 
care or supervision of their property in such town, stating 
the kind of property, the place where it is laid, and that they 
intend to tax the same ; and an affidavit, by the selectman 
or assessor giving the notice, that such notice was given, 
shall be evidence of the fact. — id. s. 14. 

The form of the notice may be as follows : 

To , Depot Master and Agent of the — 

Railroad Corporation : 

You are hereby notified that we intend to tax the follow- 
ing described lumber lying upon the premises of said cor- 



WHERE AND TO WHOM TO BE TAXED. 167 

poration at the depot in the town of : [Here insert a 

description of the lumber with the marks upon it if any.] 

Witness our hands at said , this day of 18 — . 

) Selectmen 

V of 



B , 18 — . I hereby certify that on this first day of 

April, instant, I gave to [or, " left at the abode of,"] , 

above mentioned, a notice in writing, of which the above is 
a true copy. 

, Selectman of . 

Certificate of oath as in s. 10 (c), p. 93. 

The copy and certificate should be returned to the town 
clerk. 

15. On its way to market. When such property is in 
any town, other than that in which it was cut, on the first 
day of April, on its way to market, or temporarily delayed 
therein on its way to market, if the owner, residing in the 
state, furnishes to one of the selectmen or assessors of such 
town, on or before the fourth day of said April, a statement 
(1) under oath, signed by himself and by one of the selectmen 
or assessors of the town where the owner resides, specifying 
the amount of said property, and that the same has been 
given in by the owner for taxation in that month in the 
town where the owner resides, it shall be there taxed. — id. 
s. 15. 

(1) The form of such statement may be: 

I, , of the town of , and I, , one of the selectmen of said town, hereby 

certify that fifty thousand feet of spruce timber lying [describe the place], on the first 
day of April, instant, on its way to market, has been given in for taxation, in said 

month, by said , the owner thereof, in the town of , where he resided on 

said first day of April, and now resides. 

B , April 3d, 1869. 



Certificate of oath as in s. 10 (c), p. 93. 
It would be well to preserve a copy. 

16. Occupant refusing to be taxed. If any person, not 
the owner, is living on any farm or in any house on the 
first day of April, and refuses to be taxed for it, it shall be 
taxed as resident by the number of the lot, or such other 
description as it is commonly known by, with the name of 
the occupant as such ; and estate so taxed shall be holden 
and liable to be sold in the same manner as the real estate 
of residents is holden and sold for taxes. — id. s. 16» 



168 WHERE AND TO WHOM TO BE TAXED. 

IT. Non-resident improved. If no person is in posses- 
sion or occupation of any building deemed by the selectmen 
to be tenantable, or of any other real estate improved as 
pasture, mowing, arable, or otherwise, the same shall be 
taxed as non-resident by such description as it may be 
readily known by, with the name of the owner, if known. — 
id. s. 17. 

18. If any tenant in common or joint tenant in posses- 
sion of any real estate of the kinds specified in sections 16 
and 17 of said chapter, refuses to be taxed beyond the 
shares claimed by him, and no other person is in possession, 
the other shares shall be taxed as non-resident, with such 
description of the land as it may be readily known by, the 
name of the person in possession, and the names of the 
owners of the shares for which he refuses to be taxed, if 
such owners are known. — Laws of 1868, c. 1, s. 13. 

19. Unimproved lands of non-residents shall be taxed 
in the name of the owner, if known ; otherwise in the (1) 
name of the original proprietor, if known ; otherwise with- 
out any name, and by the number of lot and range, and the 
quantity thereof, if lotted, or by such other description as it 
may be readily known by (2). — Gen. Sts. p. 119, c. 50, 
s. 18. 

(1) This direction must be complied with or the land is not legally taxed ; but if the 
name is omitted, it will be presumed till the contrary is shown that it was not 
known.— 21 R. 400; 17 R. 420; 6 R. 182; Digest, p. 598, ss. 62-64. 

(2) A description of land as "sixty-eight acres, part of government right," is too in- 
indefinite.— 21 R.400; Digest, p. 598, s. 66. 

20. Estates of persons deceased may be taxed to the 
widow, any of the children, heirs, or other person (1) who 
will consent to be considered as in possession thereof; 
otherwise to the heirs of such deceased person. — id. s. 19. 

(1) It should be taxed " to the heirs " of the deceased, naming him, unless some one 
consents to be taxed for it. See s. 10, ante. 

21. Administrator, guardian, trustee. The real and 
personal estate of any legatee or ward, and all taxable prop- 
erty held in trust, shall be taxed to the administrator, 
guardian, or trustee ; the real estate in the town in which 
it is situate, and the personal estate in the town in which 
such administrator, trustee, or guardian resides, if in this 
state, otherwise in the town in which such legatee, ward, 
or person beneficially interested resides ; but living animals 



WHERE AND TO WHOM TO BE TAXED. 169 

and stock in trade shall be taxed in the town in which they 
are kept. — id. p. 119, s. 20. 

(a) If the administrator is himself a legatee, he may be taxed for the share coming to 
him.— 4 It. 118; Digest, p. 597, s. 39; and see Digest, p. 314, s. 247. 

22. Affidavit of removal. The selectmen shall assess 
all persons whom they believe (1) to be inhabitants of the 
town on the first day of April. If any person so assessed 
shall tender to the selectmen his affidavit, stating that 
before the first day of April he had removed from said 
town and become an inhabitant of any other specified place, 
and answer such interrogatories under oath as the select- 
men may propose relative to his residence, they may sus- 
pend the collection of such tax. — id. s. 21. 

(1) And they will be protected if they act in good faith, whether the person was an 
inhabitant or not. — 20 R. 117; Fletcher vs. Dane, July term, 1867. 

23. Certificate of taxation elsewhere. If the person 
so assessed and examined shall, on or before the first day 
of March following, produce to said selectmen the certifi- 
cate (1) under oath of the selectmen of any other town that 
he was assessed in that town as an inhabitant, and how 
much, and has paid the tax, and that the same is the legal 
tax for the year upon his poll and whole estate, the tax in 
such other town may be abated ; otherwise it shall be col- 
lected. — id. s. 22. 

(1) The form of the certificate may be: 

We certify that , of the town of , was assessed in said town in the 

month of April, 18—, as an inhabitant, for the sum of dollars and cents, and 

has paid Hie tax, and that the same is the legal tax for said year upon his poll and 
whole estate. 

Witness our hands at said , this day of , 18 — . 

Selectmen 
of 



24. Lien for tax. Any person or corporation to whom 
any tax may be assessed upon the property of any other 
person or corporation, shall have a lien upon such property 
and the income or dividends thereof until such tax is 
repaid ; shall be allowed the same upon settlement of their 
accounts ; and shall have a right to recover the same 
against the owner by action for money paid to his use. — id. 
s. 23. 

25. Stud horse or ass. The selectmen shall appraise 
and assess, in all taxes of the year, every stud horse or ass 
kept in the town for the use of mares at any time after the 



170 



ANNUAL INVOICE AND ASSESSMENT. 



first day of April, and may require the owner or person hav- 
ing the care of such animal to give security to pay the tax 
thereon, or produce satisfactory proof within thirty days 
that such animal has been duly taxed in some other town 
in this state. — id. s. 24. 

The invoice and assessment may be in the general form, 
but separate from the other, and the rate of assessment will 
be the same as upon other property. 

26. Security for tax. If the owner or person having 
care of such stud horse or ass shall not give reasonable 
security upon request, he shall forfeit three times the 
amount of the tax so assessed, for the use of the town. — id. 
s. 25. 



CHAPTEE XXXII. 



ANNUAL invoice and assessment. 



Accidental omission, effect of, s. 18 (a). 
Account of shares and deposits, s. 8. 
Account of taxable property. 

Application for, to corporations, ss. 7, 8. 

Application for, to individuals, s. 3, s. 
4(1), s. 5(1). 

Form of account and oath to, s. 4. 

If false, effect of, s. 4 (4), s. 5. 

Notice to bring in account, ss. 2, 8. 
Amendment, when inadmissable, s. 23(b) 
Appraisal, to be at cash value, s. 11. 
Assessment, and form of, ss. 18-26. 
Assessors, part of joint board, s. 26. 
Bellows, J., charge of, to grand jury, s. 

4 (2) (3) (4), s. 11 (1). 
Buildings, invoice of, ss. 14, 15. 
Corporation officers, duties of, ss. 7, 

8, 9. 
Deductions from property of insane, s. 
16. 

From shares in corporations, s. 12. 

On account of debts, s. 17. 
Distinct interests in real estate, 

s. 13. 
Doomage, and form of, s. 4 (2), s. 5. 



Fire district, taxes, s. 20. 
Five per cent overlay, ss. 21, 24. 
Fourfolding, and form of, s. 4 (2), s. 5. 
Fraudulent deposits and transfers 

s. 10. 
Highway tax, ss. 20, 24. 
Ins Ay e, property of, s. 16. 
Invoice, and fbim of, ss. 1, 14, 15, 25. 
Name, neglect to give, penalty for, s. 6. 
Non-resident lands, exemption of, s. 

19. 
Overlay, of five per cent, ss. 21, 24. 
Penalty for fraudulent deposits, s. 10. 
For neglect to give account, s. 9. 
For neglect to give true name, s. 6. 
Real estate, appraisal of, ss. 11, 13, 14. 
Reduced valuation, s. 18. 
Return of invoice to clerk, s. 23, s. 

23 (e). 
School-tax, s. 20. 
Selectmen's books, s. 23, s. 23 (a). 
Several taxes in one, ss. 22, 24. 
Shares, appraisal of, s. 12. 
State and county taxes, ss. 20, 24. 
Town taxes, assessment of, ss. 20, 24. 



1. Invoice. The selectmen of each town shall annually, 
in April, take an invoice of all the polls and estate liable to 
be taxed in such town on the first day of said month. — 
Gen. Sts. p. 120, c. 51, s. 1. 

2. Notice for an account. The selectmen may season- 
ably give notice of the time and place appointed by them 
to receive an account of the polls and taxable property in 
such town, by posting advertisements at some public place 
or places in such town, or in any other manner the town 
may direct. — id. s. 2. 



ANNUAL INVOICE AND ASSESSMENT. 171 

The form of the notice may be as follows : 

To the inhabitants of the town of , and all persons 

liable to be assessed therein : 

The undersigned will receive an account of the polls and 

taxable property in said town, at , in said town, on 

the — day of next, from — o'clock in the forenoon 

to — o'clock in the afternoon, at which time and place 
such account is required to be produced. 

Witness our hands at said — -, this — day of , 

18—. 

) .Selectmen 

\ of 



3. Personal application. The selectmen, or either of 
them, may make personal application (1) to any inhabitant 
of the town, to any person having the care of personal 
property taxable therein, and to the officers of any corpo- 
ration, for an account of the polls and ratable estate for 
which they are liable to be taxed. — id. s. 3. 

(1) The party should be distinctly told in some form that such an account is called 
for.— 29 R. 201 ; Digest, p. 599, s. 83. 

4. Exhibiting account. Every person liable to be taxed 
in such town shall exhibit to the selectmen, at the time 
and place appointed by them, or upon such personal appli- 
cation (1), a true account of the polls and estate for which 
he is there taxable, either in his own right or otherwise, on 
oath, if required (2) by either of the selectmen, which oath 
either of the selectmen may administer. — id. s. 4. 

(a) An account in writing may be as follows : 

To the selectmen of the town of : 

The following is a true account of all the polls and estate 
for which I am taxable in my own right or otherwise in 
said town, — 
One poll, 
My homestead farm and buildings, 

Forty acres of land adjoining land of , 

Ten shares in the First National Bank at , 



Money on hand (3) and at interest more than I pay in- 
terest for, including money deposited in any bank other 



172 ANNUAL INVOICE AND ASSESSMENT. 

than a savings bank, or loaned on any mortgage, pledge, 
obligation, note or other security, whether on interest or 
interest paid in advance, dollars, 

One buggy wagon, etc., etc. 

Witness my hand at said this — day of 18 — . 



(b) B , April — , 18 — . Then appeared 

and made oath (4) that the above account by him signed 
is true. 

Before me, , Justice of the Peace 

[or " Selectman of " ]. 

If the account is verbal it should be reduced to writing 
by the selectmen. The form of oath in such case may be : 

You solemnly swear that the account which you have 
now given in, is a true account of all the polls and the estate 

for which you are taxable in the town of -, in your 

own right or otherwise. 

So help you God. 

(1) If the party is not prepared when called upon, it is his duty to carry a proper 
account to the selectmen, and failing to do so he may be doomecl-4: R. 118; Digest, p. 
599, s. 81; and so if he is absent when they call.— 8 R. 169. 

(2) Some observations by Judge Bellows in his charge to the grand jury of Hillsbor- 
ough county, May Term, 1868, and published at the request of the grand jury are in- 
serted :— 

" Th3 duties of assessors are always delicate and difficult, but it is none the less im- 
perative upon them to omit no reasonable effort to include in the annual invoice all 
the property of every description in their respective towns which by the existing laws 
is subject to taxation. In regard to this they have no discretion but must administer 
the law as they find it. With the best efforts that can be made, there will doubtless 
be omitted some taxable property ; but until the selectmen have exhausted all means 
to discover it which the law arms them with, they have in no sense done their duty, 
and for such delinquency are themselves liable to indictment. Indeed, whenever they 
have reason to suspect that all has not been disclosed, there can be no pretense that 
their duty has been discharged until an account upon oath has been required. If such 
an account is furnished, and they have reason to think that taxable estate has been 
willfully omitted, it clearly becomes their duty to make further investigation, and then 
if such omission be discovered, to assess the four-fold required by law."— Charge, etc., 
p. 13. 

(3) " In some parts of the state it is claimed that money loaned, and on which inter- 
est has been paid in advance, is neither money on hand or at interest ; and the same 
is sometimes said in relation to money loaned, but interest not to commence until after 
the first day of April. 

" There are various other devices of the like character which have been resorted to 
with more or less success for the purpose of soothing the consciences of those who are 
unwilling to bear their share of the public burthens. 

" But it ought to be distinctly understood that the law is. to have a fair and rational 
interpretation, and that by no such subterfuges can the duty of the tax-payer be legally 
or honestly avoided. Among these subterfuges it has been said that the tax-payer 
will sometimes make a temporary assignment of his money securities, in exchange, 
perhaps, for government bonds, or other securities not taxable, so as to be able to say 
that on the first day of April he had no money at interest, while the person with whom 
such exchange was made would, say the same upon the ground that there was no real 
exchange."— Charge, etc., p. 9. 

In all such cases it is apparent that if the money has not been loaned, and, of course, 
taxable as such, it is still on hand, and the person who holds it temporarily is a mere 
agent or bailee, or in other words the money is deposited with him for the time being. 

(4) " It is quite probable," says Judge Bellows, " that the legal consequences of the oath 



ANNUAL INVOICE AND ASSESSMENT. 173 

are not fully understood, and that it may sometimes be supposed that it is to be assim- 
ilated to the official oath, which in too many instances is lightly regarded; but the 
truth is that in'the eye of the law, as well as in the tribunal of conscience, the oath in 
question is equally obligatory, and its violation equally odious, as the oath of a witness 
in a court of justice, and it greatly concerns the cause of good morals and the due 
administration of the laws that such offenders be brought to condign punishment." — 
Charge, etc., p. 12. 

The penalty which the law affixes to this crime, when willfully committed, is con- 
finement in the state prison from two to five years.— Gen. Sts. p. 520, c. 259, s. 1. 

5. Doomage and fourfolding. If any person shall neg- 
lect or refuse, after due notice given as aforesaid, or when 
called upon by any selectman, to give such account, the 
selectmen shall set down to such person, by way of doom- 
age, as much as they judge equitable, which shall be conclu- 
sive in all cases, unless the party shall show, by his state- 
ment under oath, that it was not in his power to exhibit 
such statement. 

If any person, in giving to the selectmen such account, 
willfully omits any part of the estate for which he is taxa- 
ble, the selectmen may assess such person, in all taxes of 
that year, four times as much as such estate if given in 
would be legally taxable. — id. ss. 5, 6. 

The distinction between the two cases will be readily 
seen. If upon a proper notice or request no account is ren- 
dered, or an account is rendered but not sufficient in form 
(1), the selectmen are to set down what they deem to be 
equitable. If an account is rendered, but it is willfully (2) 
false, the penalty of fourfold is to be visited upon the offen- 
der.— Digest, p. 599, ss. 87, 90, 92. 

The form of the assessment, if there has been a neglect to 
render a sufficient account, may be either by setting down a 
certain sum in terms as " doomage," or by putting down 
specifically the property for which the selectmen believe the 
party should be taxed.— 7 R. 113, 121 ; 20 R. 268 ; Digest, 
p. 599, ss. 86, 87. If set down as " doomage," no specifi- 
cation is necessary, and an entry in this form is sufficient : 

" Sophia Gordon, Doomage, $4,000," followed by the tax. 

And the words " willfully omitted, 8800, taxed, $3,000," 
sufficiently indicates a penal assessment (3) for a willful 
omission.— 28 R. 419, 431 ; 29 R. 198 ; Digest, p. 599, ss. 
86, 94. 

No hearing before the selectmen is necessary, either in a 
case of doomage or of fourfolding. — 4 R. 118, Digest, p. 
599, s. 95. 

(1) Where the account is insufficient for one kind of property it is for all.— 20 R. 263, 
269. 
If the account when given in is deemed insufficient the selectmen should say so. 



171 ANNUAL INVOICE AND ASSESSMENT. 

If, in tlie absence of a person, one of his family give in his invoice on the application 
of the selectmen, who receive it without objection, they cannot doom, as in case of 
neglect to give in an invoice, without notice that the invoice given in is unsatisfac- 
tory.— 8 R. 166; Digest, p. 599, s. 82. 

(2) The penalty of fourfold is not authorized, except in cases of fraudulent and will- 
ful omission ; it is not authorized where the omission has arisen from the party's mis- 
take, whether as to his liability to be taxed for the particular property, his ownership 
of it, or otherwise.— 20 R. 268; Digest, p. 599, s. 92. 

(3) The selectmen are not bound to impose fourfold, but may limit their penal assess- 
ment to a less sum.— 28 R. 419, 431. 

6. Neglect to give name. Whoever, upon request made 
to him by an assessor of any town in the performance of 
his official duty, refuses or neglects to give his true name, 
shall be fined not exceeding fifty dollars. — id. s. 7. 

7. Corporation, account by. The cashier, treasurer, 
agent or other principal officer of every bank, savings insti- 
tution, insurance company, or other corporation, on appli- 
cation in person or by writing by any selectman, shall fur- 
nish, at the principal place of business of such corporation, 
an account in writing, on oath, if required, of all the rata- 
ble estate of such corporation, and a like account of all 
shares and deposits therein owned by any person resident 
or corporation established out of the state, within four days 
after such application, and if he fail to render such an 
account, or a false account is rendered, the corporation may 
be doomed or assessed fourfold like an individual. — id. ss. 
8, 9. 

8. Account of shares. The cashier or other principal 
officer of every bank or other corporation, upon such appli- 
cation, shall furnish a like account of all shares or deposits 
therein owned by any inhabitant of the town of which 
the person applying is selectman, and the value thereof, 
whether mortgaged or pledged, or not, within four days 
after such application is made. — id. p. 121, s. 10. 

9. Penalty for neglect. Any such officer or agent who 
willfully neglects or refuses to furnish as aforesaid any such 
account as is required in this chapter, shall forfeit a sum 
not less than one hundred nor more than four hundred dol- 
lars, for the use of such town. — id. s. 11. 

10. For fraudulent deposits and transfers. Whoever 
transfers any stock, in any bank, insurance company, or 
other corporation, for the purpose of avoiding taxation, or 
to prevent its being taxed to the real owner thereof in the 
town in which he resides, and whoever, for either of the 
purposes aforesaid, deposits money in any savings bank or 



ANNUAL INVOICE AND ASSESSMENT. 175 

institution for savings in the name of a fictitious person, or 
any false name, or in the name of a person not resident in 
the city or town in which he is represented to reside, or 
under any false residence, shall be fined not less than one 
hundred dollars nor more than one thousand dollars, to the 
use of the town in which or for the use of which such stock 
or money ought to be taxed. — id. s. 12. 

11. At cash value. The selectmen shall appraise all 
taxable property at its full and true (1) value in money, 
and shall receive and consider all such evidence as may be 
exhibited to them relative to the value of shares in corpora- 
tions and other property, the value of which can not be 
determined by personal examination. — Gen. Sts. p. 121, 
c. 52, s. 1. 

(1) "I am inclined to think that the appi-aisal of real estate is generally much below 
its actual cash value, and that this is due in some degree to the wish to keep down the 
proportion of the several towns in the state and county taxes. Whatever may be the 
reason it is clearly illegal, and although the fact that it is a common practice may per- 
haps mitigate in some degree this breach of duty, it is manifest that it ought not to be 
tolerated."— Charge, etc., p. 15. 

12. Deductions. They shall deduct from the appraised 
value of shares in any corporation a just proportion of the 
value of any estate of such corporation which shall be other- 
wise legally taxed, upon satisfactory evidence thereof under 
oath. — id. 

13. Distinct interests in real estate. Whenever it 
shall be made to appear to the selectmen that several per- 
sons are owners of distinct interests in the same real estate, 
or that one person is owner of land and another is the 
owner of any building, timber, or wood standing thereon, or 
ores or minerals therein, they shall, upon request, appraise 
such interests, and assess the same to the owners thereof 
separately. — id. s. 2. 

14. Separate columns. The selectmen shall set down 
in their invoice, in separate columns, the value of improved 
and unimproved land ; of buildings not specially designa- 
ted ; mills and car ding-machines, factories and their 
machinery, wharves, ferries, toll-bridges, locks and canals, 
and aqueducts ; the value of stocks in public funds ; of 
shares in banks and other corporations ; the amount of 
money on hand, at interest or on deposit ; stock in trade ; 
the value of carriages ; the number and value of horses, 
asses, and mules ; of cows, oxen, and other neat stock ; 
and of sheep and hogs. — id. p. 122, s. 3. 



176 ANNUAL INVOICE AND ASSESSMENT. 

15. Buildings in column of lands. In making the 
invoice, the selectmen shall set down in the column of 
improved and unimproved land all buildings situate on such 
land and owned by the owners of such lands, except such 
buildings as are specially designated in the preceding sec- 
tion. — id. s. 4. 

16. Property of insane persons. The selectmen shall 
make such deductions from the appraised value of the prop- 
erty of insane persons as they shall think just and reasonable, 
whenever it shall appear that the income of their estates is 
not sufficient to support them. — id. s. 5. 

17. Deductions for debts. In the assessment of taxes, 
there shall be deducted from the inventory of each person 
the amount of all debts due from such person over and 
above the sum due him from solvent debtors, not exceeding 
five hundred dollars. 

In all cases where a deduction of inventory is claimed, 
the party claiming said deduction shall be put under oath 
by the selectmen or assessors, who shall ascertain the 
amount of the debts due from him, with the names and 
residences of the party or parties to whom due, and whether 
such debt is bona fide due, and not made for purposes ot 
exemption. And said sums so discovered to be due shall 
be assessed, whenever the creditor is a resident of the town, 
to him as money at interest; and when said creditor is 
not a resident of said town, but is a resident of the state, 
then said selectmen or assessors shall, in due season, for- 
ward a certified statement of the money of said creditor at 
interest in said town, to the selectmen or assessors of the 
town whereof he is a resident, which last named officials 
shall assess said sum to him in the said town of his resi- 
dence.— Laws of 1868, p. 154, c. 22. 

18. Reduced valuation. All taxes for any year follow- 
ing the first day of April shall be assessed upon the invoice 
taken in that month, estimating each poll seventy-five 
cents, and taxable property at the rate of fifty cents on 
each hundred dollars of its appraised value. — Gen. Sts. p. 
122, c. 53, s. 1. 

(a) The accidental omission to tax a person liable will not vitiate the assessment. — 21 
Pick. 81. 

It is held that the selectmen mav omit to tax the poll to prevent the gaining of a 
settlement— 29 R. 552 ; Digest, p. 513, s. 22. 



ANNUAL INVOICE AND ASSESSMENT. 177 

19. Any town may exempt unimproved lands of non- 
residents from any tax or part thereof. — id. s. 2. 

20. The selectmen shall seasonably assess all state 
and county taxes for which they have the warrants of the 
state and county treasurers respectively ; all taxes duly 
voted in their towns ; and all school, school-house and fire 
district taxes authorized by law or by vote of any school or 
fire district, duly certified to them. — id. s. 3. 

(a) They should be satisfied that the votes certified to them are sufficient in form, 
and passed at a legal meeting, for if these requisites are wanting they will be liable if 
they act under them. — 42 R. 102; Digest, p. 578, s. 36. 

21. Five per cent, over. In assessing such taxes, the 
selectmen may assess a sum not exceeding five (1) per 
cent, more than the amount of such tax, to answer any 
abatements that may be made, which shall be paid into the 
town treasury for the use of the town. — id. s. 4. 

(1) But if this limit is exceeded, though by a few cents only, the assessment is void. — 
17 R. 391, 412; Digest, p. 597, s. 56. 

22. Several taxes in one. The selectmen may include 
in one assessment the state, county, town and school taxes, 
or so many of them as may be found convenient. — id. p. 
123, s. 5. 

23. Recording, and copy. A fair record shall be made 
of every invoice taken by the selectmen, and of all taxes by 
them assessed, in a book of records of the doings of the 
selectmen in their office, which shall be the property of the 
town ; a copy thereof shall, prior to the first day of July, 
be left with the town clerk, or the original invoice and assess- 
ment shall be so left and recorded by him, and both of said 
records shall be open to the inspection of all persons. — id. 
s. 6. 

Eecording by clerk, see ante, p. 85, s. 42 (c). 

(a) Either book is evidence; but which shall govern in case of a disagreement be- 
tween the selectmen's book and the record by the town clerk is not well settled (see 
40 R. 478, 36 R. 395, 12 R. 567, 3 R. 378; Digest, p. 598-9, ss. 58, 59, 97, 99); and care 
should be taken to avoid it. 

(b) The record of an assessment is itself the assessment, and the court has no power 
to authorize it to be amended, for that would be to make a new assessment.— 36 R. 502: 
Digest, p. 38, s. 161. 

(c) It has been held that a neglect to leave the copy prior to the first day of July 
will not affect the validity of resident taxes.— Digest, p. 599, ss. 97, 98, 100. As to non- 
resident taxes, see 6 R. 192. 

24. Mode of proceeding. The invoice having been 
carefully prepared, and its correctness tested by adding the 
several columns of value and comparing them with the 

12 



178 



ANNUAL INVOICE AND ASSESSMENT. 



totals, — 1, Determine the sum to be raised and add to this 
five per cent. The selectmen are authorized to include in 
one assessment, the state, county, town and school* taxes, 
or as many of them as may be convenient. They may 
therefore add them all together, and to their sum add five 
per cent. The highway tax stands upon a different' footing 
unless it is a money tax. 2, Ascertain the tax upon one 
cent of the reduced valuation, by dividing the whole sum to 
be assessed, including the five per cent., by the total reduced 
valuation, including polls, annexing two ciphers to the right 
hand of the divisor and carry the quotient to the place of 
mills, and from this construct a tax table. Suppose the 
amount to be assessed to be 110500, and the whole reduced 
valuation 14415. Five per cent, upon 110500 is $525. 



$10500 

525 


441500 
.024 


))11025(.024 

8830 


17660 

8830 


21950 
17660 


10596.000 



4290 

It will be seen that 441500 multiplied by two cents and 
four mills gives a tax of $10,596. If upon trial in this way 
a greater overlay is desired than is shown by the result, 
carry the quotient to the fourth place instead of the third. 
Multiplying two cents and four mills by 2, 3, 4, 5, 6, 7, 8, 
9, respectively we have 

Two cents and four mills on one cent. 





1000 


$ 
100 


$ 
10 


$ 
1.00 


Cents. 
10 


Cent. 
1 


No. 1.... 


2,400 


240 


24 


2.40 


.24 


.024 


No. 2.... 


4,800 


480 


48 


4.80 


.48 


.048 


No. 3.... 


7,200 


720 


72 


7.20 


.72 


.072 


No. 4. . . . 


9.600 


960 


96 


9.60 


.96 


.096 


No. 5. . . . 


12,000 


1.200 


120 


12.00 


1.20 


.120 


No. 6. . . . 


14,400 


1,440 


144 


14.40 


1.44 


.144 


No. 7.... 


16,800 


1,680 


168 


16.80 


1.68 


.168 


No. 8.... 


19,200 


1,920 


192 


19.20 


1.92 • 


.192 


No. 9.... 


21,600 


2,160 


216 


21.60 


2.16 


.•216 



ANNUAL INVOICE AND ASSESSMENT. 179 

The right hand column gives the tax from 1 cent to 9 
cents ; the next, from 10 cents to 90 cents ; the next, from 
$1 to $9 ; the next, from $10 to $90 ; the next, from $100 
to $900 ; the next, from $1000 to $9000, upon the reduced 
valuation. 

The mode of using the table will be obvious upon inspec- 
tion ; thus if the reduced valuation of a person including 
the poll is $46.59, the tax upon $40 is found in No. 4, under 
$10 (or four times ten dollars), to be $96 ; the tax on $6 is 
found in No. 6, under $1 (or six times $1), to be $14.40 ; the 
tax on 50 cents is found in No. 5, under 10 cents, to be 
$1.20 ; and the tax on 9 cents is found to be 21 cents 6 
mills, in all $111.81. 

25. The invoice and assessment may be together as in 
the following form : 



180 



INVOICE AND ASSESSMENT. 



-3- g 

en O ,_, 

IS I 

p ® a 






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3 


2 Hi 








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pits' 








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1 




( 


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vflR 








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gs CO 








w 












CD 3 










p z 










C3 








No. of lot. 


^ o 














1 tc 




No. of range 










rr "> 










g EL 










P-- 




















gs 










3"3 




















PS 











«»s» 








CD 


*2 o 









•5" 
































p g- 








3 












P-3T 




- 




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«-p 










pc 














3 
-i 
CD 




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CD rr 1 
£ CD 








P* 


C r+ 




















2 x 








































c „. 










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P Ef 


















rr> "» 




























rt> 3 


c 


.-< s 




No. of acres' 

I 


» 2. 


< 


3 © 






C -5 























00 

© < 


1 1 




z 










^_ 


Value. 






o 






~ 




3 
















•« 


















CD 




I 




33 


#» < 


*H£ 


Reduced 
valuation. 




1 1 


n 










P 


Ol 1 ©| w 






1 ^ 




i ' 




bD 


-» s'iState. coun- 








ty, town 


> 


j 


r 


and 




© c 


*-. 4- 
3 -< 


X 


school tax. 














1 




rt 




. .1 


QO C 


,n tc 


o 


Highway- 


C 


i lo 


tax. 


o 


© icl c»l^ 






T 1 


^ c 


'1*- 











P 

CD 
CO 


1 


Polls. 




e 

CD 


Improved and unim- 
proved land including 
buildings not special- 
ly designated belong- 
ing to the owner of the 
land. 


=93= 


^ 




t 


Buildings not specially 
designated not be- 
longing to the owner 
of the land. 


*se= 


it 


Mills and carding ma- 
chines. 


1i? 


Factories and their ma- 
chinery. 


^Ip 


Wharves. 


11 


Ferries. 


^|» 


Toll bridges. 


4»M 
IP 


Locks and canals. 


=€«■ 


^ 


Aqueducts. 


12 


Stock in public funds. 




Shares in banks and 
other corporations. 


l§ 


Money on hand, at in- 
terest or on deposit. 


=©=> 


-1 


Stock in trade. 


=s=& 




Value of carriages when 
exceeding $50. 


=€©= 


f X 


Number and value of 
horses, asses and mules 
over 18 months old. 


=§&|<< 


1? 


Number and value ot 
cows, oxen and other 
neat stock over 18 
months old. 


11 


\f 


Number and value of 
sheep over 6 months 
old. 


=€& 


< 


., 


Total value. 


=€=©= 




Reduced valuation, in- 
cluding polls. 







State, county, town and 
school tax. 


[8 







Highway tax. 




m 



ASSESSMENT OF TAXES. 



181 



If the invoice is separate, the assessment may be as fol- 
lows: 

Resident assessment for the year 18 — . 





^ 


M 




5 "3 * 


-2 


Names. 


«r- o 


>> 

e8 










|§-3 


bfl 




^«" 


W 




Dol. 


Cts. 


Dol. Cts. 


A B 


3 

529 

7 


60 
41 
56 


1 

264 

2 


20 


CD 


73 


E F 


53 








540 


57 


268 


46 



Non-resident assessment for the year 18- 



Name of owner. 


Name of ori- 
ginal owner. 


~o 

o 

d 


6 
bJO 

o 

1 


Description of land. 


CB 

O 

O 

6 


goo 


1 

i 

-a 

9 














Dol 


Cts. 
16 


Dol. 


Cts. 


HE 




3 


2 




100 


14 


4 

2 


84 




















HW 






Bartlett Pasture 


50 


6 


53 


15 




20 


69 


6 


99 



The above and foregoing is an assessment of taxes upon 
the polls and estate of residents and non-residents, liable to 
be taxed in the town of Amherst, on the first day of April, 
18 — , for the year 18 — . 

A B, ) Selectmen 
CD, of 

EP,j Amherst. 

Witness our hands this day of April, 18 — . 

26. Assessors, when chosen and sworn, constitute a joint 
board with the selectmen, and can only act as members of 
the board.— 12 R. 284 ; Digest 598, ss. 72, 73. 



182 ABATEMENT OF TAXES. 



CHAPTER XXXIII 



ABATEMENT OF TAXES. 



By selectmen, ss. 1, 4, 6. 

On affidavit of payment, s. 2. 
By court, for illegality, s. 3 (a). 

For poverty, s. 3 (3). 

Non-resident, s.3 (3). 
For watering-trough, s. 4. 



Form of abatement, s. 6. 
OFFSETS,when not allowed, s. 3 (b). 
Recording abatement, s. 5. 
Title, evidence of, s. 3 (c). 
Watering trough, s. 4. 



1. Selectmen, for good cause shown, may abate any tax 
assessed by them or their predecessors. — Gen. Sts. p. 123, 
c. 53, s. 10. 

2. Upon certificate of taxation in another town, see 
ante, p. 169, ss. 15, 23. 

3. If they neglect or refuse so to abate, any person 
aggrieved, having complied with the requirements of sec- 
tion four of chapter fifty-two (1), within nine months after 
notice (2) of such tax, and not afterward, may apply by 
petition to the supreme court in the county, at a trial term, 
who shall make such order thereon as justice (3) requires. — 
Gen. Sts. p. 123, c. 53, s. 11. 

(1) This should be chapter fifty-one. 

(2) If the selectmen have failed to post notice and have made no personal applica- 
tion, he is excused from rendering account before applying for an abatement. — 42 R. 
282; Digest, p. 604, s. 200. A non-resident petitioner must give security for costs if 
required. — id. 

(3) The court of common pleas, in cases properly brought before them, may abate 
for any cause which would justify an abatement by selectmen. — Briggs' Petition; 29 R. 
547 ; Digest, p. 603, s. 193, 194. 

Inability to pay the tax from loss of property subsequent to its assessment, is a cause 
for abatement by the court. — id. 

If a fourfold tax has been erroneously imposed, the court will abate so much thereof 
as is equitable, and will leave in force so much as ought to have been assessed, if any. 
—16 R. 44; Digest, p. 603, s. 192. 

Non-resident tax-payers are entitled to the same remedies for the abatement of an 
illegal or unjust tax as residents, upon complying with the requisitions of the statute. 

(a) The law does not require a person to apply for the abatement of a tax that is 
assessed without authority of law.— 21 R. 550, 567; but he may do so.— 29 R. 551; Digest, 
p. 603, ss. 195, 196. 

(b) Towns cannot offset too high a valuation of one lot taxed as non-resident, by 
showing an under-valuation of another lot claimed by the same owner. — 42 R. 282. 

(c) Payment of taxes upon the same lot for previous years is sufficient evidence of 
title to enable a person to apply for an abatement for over- valuation. —42 R. 282 ; Digest, 
p. 604, s. 201. 

4. For watering-trough. The selectmen of every town 
shall abate a sum not exceeding three dollars, from the tax 
of any inhabitant who shall construct, and during the year 
keep in repair, a watering-trough, well supplied with water, 
sufficiently elevated and easily accessible for horses and 
carriages, if said selectmen shall deem the same necessary 
for the convenience of travelers. — id. s. 12. 



COLLECTORS OF TAXES. 



183 



5. Recording. No abatement of a tax shall be of any 
effect until recorded in the book of records of the select- 
men. — id. s. 13. 

6. The form of an abatement may be as follows : 

The sum of — dollars and — cents is abated from the 

tax of , for the year 18 — , for [state the cause] . 

Witness our hands this — day of , 18 — . 

) Selectmen 

= \ of 



Recording, as ante, p. 84, s. 42. 



CHAPTER XXXIV 



COLLECTORS OF TAXES. 



Administrator, duty of, s. 6. 
Appointment of collector, s. 1. 
Authority of collector, s. 11. 
Bond by collector, s. 2. 
Collector, when not liable, s. 10. 

Compensation of, s. 3. 

Death of collector, s. 4. 

Fees of, s. 12. 

Penalty for illegal fees, s. 13. 
Credits, to tax payer, s. 16 (1). 
Deputy collector, s. 9. 
Discount, upon taxes, s. 16. 



Executor, duty of, s. 6. 

Extent, collector liable to, s. 14. 

Interest, upon taxes, s. 15. 

List of TxVxes, and form of, ss. 17, 18. 

Name of collector, return of, s. 19. 

Of tax-payers, s. 18(1). 
Penalty for illegal fees, s. 13. 
Removal of collector, ss. 7, 8. 
Sureties, liability of, s. 2 (1), s. 7. 
Unfinished business, s. 8. 
Warrant, and form of, s. 17. 



1. Appointment. When any town shall neglect or refuse 
to choose a collector of taxes, or to fill a vacancy in that 
office, or when any town shall, by a vote at their annual 
meeting, so direct, the selectmen may appoint a collector or 
collectors of taxes, whose powers, duties and liabilities 
shall be the same as those of collectors chosen by the 
town. — Gen. Sts. p. 99, c. 39, s. 3. 

For form of appointment and record, see ante, p. 90, s. 12. 

2. Bond. Every collector or constable shall, within six 
days after his election or appointment, give bond with suf- 
ficient sureties (1) to the acceptance of the town or select- 
men, for the faithful performance of the duties of his office ; 
and in default thereof the office shall become vacant. — id. 
s. 4. 

For form of bond, see ante, p. 80, s. 23. 

(1) The sureties upon an official bond are not liable for unofficial acts or omissions.— 
3 Allen, 126, 5 do., 409; 13 Gray, 384. 



184 COLLECTORS OF TAXES. 

3. Compensation. Every town may, at their annual 
meeting, determine, by vote or otherwise, the rate or 
amount of compensation to be allowed the collector of taxes 
for his services ; and whenever the selectmen appoint a 
collector, they shall make a written agreement as to such 
compensation, which shall be signed by the selectmen and 
collector. — id. s. 5. 

4. Death of collector. If a collector dies before complet- 
ing the collection of a tax committed to him, the selectmen 
or mayor and aldermen may appoint some suitable person 
to complete the collection, and pay him a reasonable com- 
pensation therefor ; and the assessors shall commit the 
uncollected portion of the tax-list to him, and he shall give 
such bonds as the selectmen or mayor and aldermen may 
require, and have the same powers and be subject to the 
same duties and liabilities as other collectors. — id. p. 100, 
s. 8. 

5. Removal of collector, see ante, pp. 89, 90, ss. 8, 9, 
10 ; s. 7, post. 

6. Administrator, duty of. In case of death or removal 
from office of a collector, his executors or administrators, 
and all other persons into whose hands any of his unsettled 
tax-lists may come, shall forthwith deliver the same to the 
selectmen of the town or mayor of the city. — Gen. Sts. p. 
100, c. 39, s. 10. 

7. Sureties not discharged. The appointment of a col- 
lector, under any of the provisions of this chapter, shall not 
discharge the bondsmen or representatives of the deceased 
or insane collector from their liability for any of his acts or 
negligence. — id. s. 11 ; see also, ante, p. 88, s. 3. 

8. Any distress commenced by the deceased or removed 
collector may be completed by the collector appointed under 
the provisions of this chapter, in the same manner as it 
could have been by him who commenced it. — id. s. 12 ; see 
also, ante, p. 90, s. 11. 

9. Deputy collector. Any collector, being authorized 
by vote of the town, may appoint deputies, who shall be 
sworn, give bond to the satisfaction of the selectmen, and 
have the powers of collectors, and may be removed at the 
pleasure of the collector. — Gen. Sts. p. 126, c. 54, s. 19. 

10. Collector, when not liable. No person to whom 
any list of taxes shall be committed for collection shall be 



COLLECTORS OF TAXES. 185 

liable to any suit by reason of any irregularity or illegality 
of the proceedings of the town, or of the selectmen, nor for 
any cause (1) whatever, except his own official miscon- 
duct. — Gen. Sts. p. 125, c. 54, s. 16. 

(1) He must be sworn, the warrant must be under seal, and both the warrant and the 
tax-list must be signed by a majority of the selectmen, or the collector will be liable in 
trespass; if appointed it mav also be necessary that his appointment be recorded be- 
fore he can act.— Digest, p. 600, ss. 106, 111, 116, 117. 

11. Authority. Every collector, in the collection of 
taxes committed to him to collect, and in the service of his 
warrant, shall have the powers vested in constables in the 
service of civil process, which shall continue until all the 
taxes in his list are collected. — Gen. Sts. p. 124, c. 54, s. 1. 

12. Fees op collectors. See post, c. 35, s. 11, c. 36, s. 
22. 

13. Penalty for taking more. If any collector shall 
demand or take any other or greater fees than are by law 
allowed for any of the services by him rendered, he shall 
forfeit five dollars (1) to the person suing therefor. — Gen. 
Sts. p. 128, c. 55, s. 21. 

(1) He is not subject to the penalty of fifty dollars imposed by s. 27, c. 272 Gen. Sts. ; 
23 R. 431; Digest, p. 373, ss. 10, 11. But the'penalty of five dollars applies to a collec- 
or of resident taxes as well as to a collector of non-resident. — id. 

14. Liability of a collector to an extent. See post, 
chapter 39. 

15. Interest at ten per cent, shall be charged upon all 
taxes not paid on or before the first day of November after 
their assessment, from that date, which shall be collected 
with said taxes as incident thereto. — Gen. Sts. p. 123, c. 
53, s. 9. 

16. Discount. Any town may, by vote at the annual 
meeting, direct a discount (1) to be made to those persons 
who shall pay their taxes within such periods as the town 
may limit ; and every person so paying shall be entitled to 
such discount. — Gen. Sts. p. 125, c. 54, s. 17. 

_ (1) Credits. Where, by the vote of a town, a credit is due to the tax-payer in reduc- 
tion of the tax, the warrant may be for the full amount^ with a credit of the payment, 
or perhaps it may be for the balance. See also, ante, p. 182, s. 4. 

17. Warrant. A list of all taxes by them assessed shall 
be made by the selectmen under their hands, with a war- 
rant under their hands and seal, directed to the collector 
of such town, requiring him to collect the same and pay to 



186 COLLECTORS OP TAXES. 

the state and county treasurer and to the selectmen or town 
treasurer such sums at such times as may be therein pre- 
scribed. — Gen. Sts. p. 123, c. 53, s. 8. 

The form of a warrant for resident taxes may be as fol- 
lows : 

[L. S.] STATE OF NEW HAMPSHIRE. 

To , collector of taxes for the town of , in the 

county of : 

In the name of said state, you are required to collect of the 
persons and corporations named in the list herewith com- 
mitted to you the sums set against their respective names 

(amounting in all to the sum of dollars) , with ten per 

cent, interest from the first day of November next, on all 
sums not paid on or before that day, and pay to the treas- 
urer of said state the sum of • dollars and — cents, on or 

before the — day of next, and to the treasurer of said 

county the sum of dollars and — cents, on or before 

the — day of next, and to the treasurer of said town the 

sum of dollars on or before the — day of next, 

and to said town treasurer the residue of said taxes on or 
before the — day of next (1). 

Upon default, after due notice, of any persons or corpo- 
rations named in said list, to pay the tax assessed against 
them respectively, you are directed to distrain their goods 
and chattels, and for want of goods and chattels whereon 
to make distress of any such person neglecting or refusing 
to pay the tax assessed against him, to take his body and 
commit him to the common jail in said county, and the 
jailer shall receive and detain him in his custody until 
he pays such tax, cost of commitment and charges of 
imprisonment, or is otherwise discharged by due course of 
law. 

[By a vote of said town all persons who shall pay their 

taxes on or before the — day of next, will be entitled 

to a discount of — per cent. ; and all persons who shall 

pay on or before the — day of next to a discount of 

— per cent.] 

In case any person named in said list shall die or remove 
from town and leave there no personal estate on which dis- 
tress can be made, or in case any such person or corporation 



COLLECTORS OF TAXES. 187 

shall neglect or refuse to expose goods and chattels where- 
on distress may be made, the real estate of such person or 
corporation will be holden for such tax for one year from 
the first day of June next, and so much thereof as will pay 
such tax may be sold by you at public auction, and a con- 
veyance thereof executed as prescribed by law. 

Hereof fail not. 

Given under our hands and seal this — day of 18 — . 

) Selectmen 

\ of 



(1^ This will not prevent his collecting after that time. — Digest, p. 600, ss. 121-3. 

18. The list op taxes following the warrant may be : 
List of resident taxes. 





Names (1). 




A B 


Dols. 
3 

529 

7 


Cts. 
60 


A C 


41 


AD 


56 




540 


57 



The above and foregoing is a correct list of all taxes 
assessed upon the ratable polls and estates of the inhabi- 
tants of the town of , for the year 18 — . 

Witness our hands (2) at said this — day of 

18—. 



Selectmen 
of 



(1) The list should distinctly contain the names of the persons against whom the 
taxes are assessed; but a mistake in the middle name, or its initial, will not be fatal. — 
Digest, p. 473, s. 1. 

(2) The list must be signed as well as the warrant, or the collector has no authority. 
—Digest, p. 600, s. 116. 

19. Name of collector, return of. The selectmen 
shall seasonably make a return to the state and county 
treasurer of the names of the collectors of their respective 
towns, the date of their warrants, the amounts they are 
required to pay to such treasurers respectively, and the 
time of payment. — id. s. l f 



188 



COLLECTION OF RESIDENT TAXES. 



The form of the return may be as follows : 

To the treasurer of ; 

We have issued a warrant dated , 18- 



collector of taxes for the town of 



-, to 



5 xu ) uu ? 

— , for the year 18 — , 

requiring him to collect and pay over to you dollars 

on or before the — day of next, and dollars and 

— cents on or before the — day of next. 

Witness our hands at said , this — day of , 

18—. 

) Selectmen 

\ of 



A like return should be made to the town treasurer of 
the sums to be paid to him. 



CHAPTER XXXV 



COLLECTION OF RESIDENT TAXES. 



ACCOUNT OF SALE, S. 10. 

Advertisement of sale, s. 17. 
Arrest in a dwelling-house, s. 12 (c). 

No distress after an arrest, s. 9. 

Personal treatment upon, s. 12 (d). 
Committing to jail, s. 12 (d). 
Copy for jailer, s. 13. 
Corporations, tax against, ss. 4, 15. 
Distress, ss. 2, 4-11. 
Exemption from distress, s. 5. 
Escape, s. 12 (e). 
Fees of collector, ss. 3, 11, 18. 
Jailer, duty of, s. 13. 



Lien on real estate, ss. 16, 17. 

Non-resident tax, s. 14. 

Notice of sale, ss. 6, 7, 17. 

Notice of tax, ss. 2, 3, 4. 

Posting advertisement, s. 17. 

Removal from town, s. 14. 

Sale illegal after an arrest, s. 9. 

And after payment, s. 6 (1). 
Seal in copying, s. 13 (1). 
Searching for property before an 

ARREST, S. 12 (a). 

Second sale or seizure, s. 8. 
Towns may prescribe time of notice, s. 3. 



1. Appointment, bond, fees, warrant and tax-list and 
general authority of collectors, see ante, p, 183, c. 34. 

2. Fourteen days' notice. The collector shall give 
notice of such tax to every person taxed, or leave a notice 
thereof in writing at his abode, fourteen days at least before 
he shall distrain therefor, unless in cases where he has 
reason to believe such person is about to remove from 
town. — Gen. Sts. p. 124, c. 54, s. 2. 

No notice of the tax is necessary if the tax is against a 
person who is not an inhabitant of the state, or if the person 



COLLECTION OF RESIDENT TAXES. 189 

against whom is the tax has removed from the town. — 
Laws of 1868, c. 1, s. 14. 

It is better that notice be in writing when practicable, 
but if given to the tax-payer in person it may be verbal, even 
if the warrant direct that it be in writing. — Digest, p. 600, 
s. 124. 

The form of a written notice may be as follows : 

To , of the town of : 

The taxes assessed against you in said town for the year 
18 — , and committed to me for collection, are as follows : 

State, county, town and school tax (1), dollars and 

— cents. 

[By a vote of said town all persons who shall pay on or 
before the — day of next, will be entitled to a deduc- 
tion of — per cent., and all persons who shall pay on or 

before the — day of next to a deduction of — per 

cent.] 

Witness my hand at said , this — day of 

18—. 

■ Collector of . 

(1) If the taxes were separate, state them separately. 

3. Towns may direct notice. Any town may, by vote, 
direct the time at which notice shall be given to persons 
whose taxes shall be then unpaid of the amount of the 
same ; and if the same shall not be paid, with twenty cents 
for such notice, within fourteen days thereafter, the collec- 
tor may distrain for the same. — id. p. 125, s. 18. 

4. Corporations. The collector shall give the same 
notice, in writing, of all taxes assessed against any corpo- 
ration, to the cashier, treasurer, or some principal officer of 
such corporation. — id. p. 124, s. 3. 

Upon neglect or refusal of any person or corporation to 
pay the taxes assessed on them, the collector may distrain 
the goods and chattels of such person or corporation. — id. 
s. 4. 

5. Articles exempt. No distress shall be made of any 
person's tools or implements necessary for his trade and 
occupation, nor of his arms, or utensils of household neces- 
sary for upholding life, nor of bedding or apparel necessary 
for him or his family. — id. s. 5. 



190 COLLECTION OP RESIDENT TAXES. 

6. Notice, and sale. The collector shall keep the prop- 
erty distrained four days, at the cost of the owner. If the 
tax, cost and charges are not then paid, he shall post, in 
two or more public places (1) in the town where the sale is 
to be, twenty-four hours before the time of sale, a notice of the 
place, day, and hour of sale, with a particular description of 
the property to be sold ; and, at the time and place 
appointed, which shall be in the town where the distress is 
made, between the hours of ten in the forenoon and six in the 
afternoon, and within forty -eight hours after the expiration of 
said four days, shall sell the same at auction. — Gen. Sts. 
p. 124, c. 54, s. 6. 

The form of the notice may be as follows : 

DISTRESS FOR TAXES. 

Taken as a distress for taxes and will be sold at auction 

at , in the town of , on the day of 

next, at — of the clock in the noon,- one red yearling 

heifer and six sheep (2). 

Dated at said — ■. , this day of , 18 — . 

, Collector of . 

(1) Meaning of public place, see ante, p. 36, s. 10 (c). 

(2) The collector must stop selling as soon as he has sold enough to pay the tax and 
legal charges.— 24 R. 237; Digest, p. 601, s. 132. 

7. There must be four days between the day of taking 
and the day of advertising, without counting Sunday. A 
distress taken on Monday is properly advertised on Satur- 
day to be sold on the following Monday .-^36 E. 302 ; 
Digest, p. 601, ss. 141-143. 

8. Second sale or seizure. If by sickness or other inev- 
itable accident the collector be unable to sell within the 
forty-eight hours, or to adjourn to a day when he can 
attend, he may sell after that time upon a new advertise- 
ment.— 7 R. 321-325 ; Digest, p. 601, ss. 136-139. And 
if the property be struck off to one who refuses to complete 
the purchase, it may be sold a second time, or on a new 
advertisement if necessary. — 9 R. 530; Digest, p. 601, s. 
140. 

9. After an arrest, the collector cannot ordinarily dis- 
train property.— 25 R. 251 ; Digest, p. 601, s. 134. 

10. Account of sale. A particular account in writing 



COLLECTION OF RESIDENT TAXES. 191 

of the taxes of the delinquent, the collector's fees and the 
charges of keeping and sale, and the amount of sale of each 
article, with the overplus, if any, after deducting said taxes 
and charges, shall be delivered, immediately upon such 
sale, to the owner, or be ready to be delivered to him. — 
Gen. Sts. p. 124, c. 54, s. 7. 

The form of the account may be : 

To , of the town of : 

The following is a particular account of your taxes in said 
town for the year 18 — , and my fees and the charges of 
keeping and sale, and of the amount of the sale of each arti- 
cle this day at public auction, upon proceedings by distress, 
for the collection of said tax. 

State, county, town and school tax (1). . . $157 60 

Travel, five miles, 60 

Service, 50 

Expense of keeping, 3 00 

Poundage, 4 15 

$165 85 
Gray gelding sold for, .... $125 40 
Black mare, 100 00 



$225 40 
Deducting taxes and charges, . . 165 85 



Balance in my hands, .... $59 55 

L , 18—. 

, Collector of 



(1) If the taxes were separate, state them separately. 

11. Fees and charges. Collectors shall be entitled to 
the same fees for the collection of taxes by distress and 
sale, or for arresting or committing any person to jail, as 
sheriffs may be entitled to receive for like services upon 
civil process. — id. p. 125, c. 54, s. 11. 

By this rule the fees of a collector will be, for travel, six 
cents a mile each way from his place of residence to the 
place of service, in no case exceeding fifty miles ; for ser- 
vice, fifty cents ; for poundage, three cents on a dollar for 



192 -COLLECTION OP RESIDENT TAXES. 

the first one hundred, two cents on a dollar for the next 
two hundred, and one cent on a dollar for the balance ; and 
for the copy of the warrant upon committing to jail seven- 
teen cents for every page of two hundred and twenty-four 
words, and for any part less than a page twelve cents. — 
Gen. Sts. pp. 548-9, c. 272, ss. 3, 14. 

12. Arrest. For want of goods and chattels whereon to 
make distress, the collector may take the body of any per- 
son neglecting or refusing to pay the tax assessed against 
him, and commit him to the common jail. — id. p. 124, c. 
54, s. 8. 

(a) The collector is not bound to search for goods, but may take the body of the 
delinquent, and will not be obliged to discharge him upon his subsequent offering suffi- 
cient property, with an indemnity as to the title. — 9 R. 190; 19 R. 195; Digest, p. 600, 
s. 124. But he must act in good faith, and not for oppression, and if, before an arrest, 
such an offer is made, he should not arrest. 

(b) The lien given by statute upon the real estate does not impair the right to take 
the body.— 28 R. 402. 

(c) A collector, if the outer door is shut, cannot ordinarily, without the consent of 
the occupant, enter a dwelling house to execute his process. But if the occupant has 
fraudulently received the delinquent for the purpose of preventing a collection of the 
tax, the collector may enter, after a request and refusal, and when he has once entered 
lawfully, he may break an inner door if necessary. — 28 R. 415; Digest, p. 44, ss. 31-33. 

(d) It is the duty of the collector to commit the delinquent to jail as soon after the 
arrest as he reasonably can; he must not recklessly expose the prisoner's health, or 
give him any unnecessary personal injury.— 25 R. 251 ; Digest, p. 43, s. 10. 

(e) If he discharges him from his custody, he cannot retake him ; but where a col- 
lector, after an arrest, permitted the party to go home upon his promise to deliver him- 
self up the next day, (his watch being pledged as security), it was held that he might 
retake him after that time.— 25 R. 251 ; Digest, p. 299, ss. 2, 3. 

13. Copy for jailer. In such case the collector shall 
give to the jailer an attested copy of his warrant, and there- 
upon certify the sums such person is taxed in his list, and 
that he has taken his body for want of goods and chattels 
whereon to make distress ; and the jailer shall receive and 
detain such person in his custody until he pays such tax, 
cost of commitment and charges of imprisonment, or is 
otherwise discharged by due course of law. — id. s. 9. 

The copy is to be attested as follows : 

A true copy of warrant. 

Attest : , Constable of . 

The certificate upon the warrant may be as follows : 

C , ss. , 18 — . I certify that the sums for 

which the within named is taxed upon my list of 

taxes, is as follows : 

State, county, town, and school tax (2), . $ 

I also certify that I have taken the body of the said 



COLLECTION OP RESIDENT TAXES. 193 

for want of goods and chattels whereon to make distress 
and have committed him to the common jail in said county! 
the costs of the commitment are, . . . . $ 

, Collector of , 

!i! h5- f ? r the plaoe of seal.— Digest, p. 500, s. 02. 

(2) II the tases were assessed separately, state them so. 

14. Removal from town. In case of removal from town 
or of an assessment upon the personal property of non-resi- 
dents, the collector may distrain the property, or arrest the 
body ol any person named in his list, wherever such person 
or his property may be found.— id. s. 10 

Id. Corporations. The real and personal property of 
corporations shall be liable to be taken and sold for taxes 
m the same manner as the property of individuals ; and the 
franchise of taking toll may be taken and sold for taxes in 
thejiame manner as the same may be sold on execution.— 

16. Lien on real estate. The real estate of every per- 
son or corporation against whom any tax may be assessed, 
shall be ho den for such tax for one year from the first day 
oi June following and may be sold by the collector in case 
such person shall die or remove from town and leave there 
no personal estate on which distress can be made, or in case 
such person or corporation shall neglect or refuse to expose 
goods and chattels whereon distress may be made.— id. s 13 

Hon 1% I' °V ' ° f / he A aWS °! 1868 > the lien Si™ by sec- 
tion 13 chapter o4 of Gen. Sts, is for all taxes assessed 
against the owner of the real estate, and not for real estate 

17. Posting advertisements. The collector shall give no- 
tice of such sale by posting advertisements thereof in two or 

before the sale, m which shall be stated the name of the 
owner or of the person to whom the same was taxed, and 
sncb W° am « ° f the 0CC T nt ' if ^ at the time of Porting 

iS S?£r&3H! it the tax ' and the ^ ^ J * 

(1) " Public places "—see ante, p. 36, s. 10 (c). 

collector's sale op real estate. 

The subscriber, collector of the town of will sell 

at public auction at , in said town? on ' the ^ 



194 



COLLECTION OF TAXES OF NON-RESIDENTS. 



day of — 
much of 



next, at eleven o'clock in the forenoon, so 



the real estate hereinafter described, as will pay 
the taxes thereon for the year 18 — , and incidental charges, 
viz. : 

The Howard pasture, owned by , of , and 

taxed to him, and now occupied by of said town 

of , and the taxes upon which are as follows: state, 



county and town tax, 
tax, dollars and - 



- dollars and 
cents. 



cents ; school 



The Bartlett pasture, containing fifty acres, owned, &c. 

W , 18—. 

, Collector of . . 

18. Proceedings as in non-residents. The powers and 
duties of the collector in relation to such sale ; the time, 
place and manner of the same ; the powers and duties of 
the collector and town clerk in relation to the proceedings 
subsequent thereto ; the fees of the collector and town 
clerk, and the rights of the owner in relation to the redemp- 
tion thereof, shall be the same as are prescribed by the law 
relating to the sale of the estates of non-residents. — id. s. 15. 



CHAPTER XXXVI. 



COLLECTION OF TAXES OF NON-RESIDENTS. 



Account of sales by collectors, s. 
12 (a). 

Clerk to record account, s. 13. 
Advertisement for sale, ss. 8, 9. 
Affidavit of posting, s. 12 (b). 
Certificate of deputy secretary, s. 
3(1). 

Is evidence, s. 3 (2). 
Copy of list by deputy secretary, s. 
4. 

To be returned after Sept. 1st, s. 4. 

Copy of, retained by deputy, s. 5. 
Covenants in collector's deed, 

Not binding, s. 20 (a). 
Deed to purchaser after one year, s.20. 
Deputy secretary, duty of, ss. 3, 4, 5. 
Fees of collector, s. 22. 

Apportionment of, s. 23. 

Include for copy, etc., s. 7. 

Penalty for illegal fees, s. 24. 
Highway tax, payment of, s. 21. 



Illegal fees do not avoid sale, s. 24. 

Penalty for illegal fees, s. 24. 
List of taxes, what to contain, s. 1. 

Form of list, s. 2. 

Must be delivered by May 30th, s. 3. 
Newspapers, to be filed, ss. 12, 26, xii. 
Payment to collector, ss. 15-18. 

To deputy secretary, s. 4. 
Part redemption, s.'l8. 
Posting in town, s. 10. 
Publication, three weeks, what is, s. 9 

(1). 
Real estate, what is, s. 25. 
Receipt for taxes, ss. 1G, 17. 
Redemption from sale, ss. 14-18. 
Requisites to a valid tax title, s. 26. 
Separate interests, ss. 14, 25. 
Subsequent tax, if paid by purchaser, 

s. 15. 
Town clf.rk, duties of, ss. 13, 17. 

Fees of, s. 17. 
Uncertainty in description ,s. 12 (1 ) 



1. Warrant and tax-list. A list of the taxes assessed 
on the real estate of persons not resident in the town shall 



COLLECTION OF TAXES OF NON-RESIDENTS. 195 

be made by the selectmen under their hands, in which shall 
be inserted the name of the owner, if known ; otherwise the 
name of the original owner, if known ; the number of the 
lot and range, if lotted ; otherwise such description as the 
land may be readily known by ; the number of acres, and 
the amount of taxes assessed thereon. — Gen. Sts. p. 126, 
c. 55, s. 1. 

Requisites of the warrant see ante, p. 185, s. 17. 

2. The form of the warrant may be : 

[L. S.] THE STATE OF NEW HAMPSHIRE. 

To , Collector of Taxes of the town of , in the 

county of . 

In the name of said state you are required to collect the 
taxes in the list herewith committed to you, amounting in 

all to the sum of dollars, with ten per cent, interest 

from the first day of November next, on all sums not paid 
on or before that day, and pay to the treasurer of said state 

the sum of dollars on or before the — day of 

next, and to the treasurer of said county the sum of 

dollars on or before the — day of next and to the 

treasurer of said town the sum of dollars on or be- 
fore the — day of next, and the residue of said 

taxes to said town treasurer on or before the — day of 
next. 

[By a vote of said town all persons who shall pay their 
taxes on or before the — day of next, will be en- 
titled to a discount of per cent., and all persons who 

shall pay on or before the — day of next to a dis- 
count of per cent.] 

Hereof fail not. 

Given under our hands and seal this dav of , 



18- 



Selectmen 
of 



196 



COLLECTION OF TAXES OF NON-RESIDENTS. 



The list of taxes may be as follows : 
List of non-resident taxes in the town of 



18—. 



Name of owner. 



Name of origi- 
nal owner. 



g Description of the ^ 
land. 



o 



o-2 



State, 
county, 
town and 
school tax 



Highway 
tax. 



:Dol. iCts. 
100 $250| 6 | 45 



Howard Pasture. 1 50 600! 15 i 60 



Dol. 

2_ 

5 



Cts. 
84 
20 



The above and foregoing is a list of the taxes assessed on 

the real estate of persons not resident in the town of 

for the year 18 — . 

Witness our hands at said this — day of , 

18—. 

) Selectmen 

} \ of 



(1) If the taxes were assessed separately, state them so. and in separate columns. 
The list should correspond with the invoice and assessment; the valuation can be 
omitted. 

3. Delivery to deputy secretary. Such list shall be 
delivered to the collector on or before the thirtieth day of 
May, and the collector shall, on or before the eighth day of 
the next session of the general court in June, deliver a cer- 
tified (1) copy of his list to the deputy secretary, who shall 
certify thereon the time of its receipt (2). — id. s. 2. 

(1) The attestation following the names of the selectmen may be : 
A true copy of the list. 



Attest : 



Collector of - 



(2) The certificate of the deputv is evidence of the time when the copy was received. 
17 R. 420, Digest, p. 602, s. 156; 47 R. 236. 

4. Copy kept at Concord. The deputy secretary shall 
keep such copy at Concord till the first day of September fol- 
lowing, for public inspection, and shall receive the tax on 
any tract, with ten per cent, thereon for his services, and 
give a receipt therefor. — id. s. 3. 

5. Return of to collector. The deputy secretary, at 
any time after the first day of September, on application, 
shall return said copy to the collector, with a certificate of 
the taxes by him received, and shall pay to the collector the 
amount, taking his receipt therefor. — id. s. 4. 

6. Copy of retained. Whenever the copy of the list of 



COLLECTION OF TAXES OP NON-RESIDENTS. 197 

non-resident taxes is so returned to the collector, the 
deputy secretary shall retain in his office a certified copy of 
the same, and of the payments made to him. — id. s. 5. 

7. And taxed as cost. The amount paid to him for 
making such copy, by the collector, may be charged by the 
collector with the other costs. — id. 

8. The collector, after receiving from the deputy secre- 
tary said copy and certificate, shall advertise the land on 
which the taxes have not been paid for sale, in such paper, 
printed at Concord, as may by resolve of the general court 
be designated therefor ; and also, except in Merrimack 
county, in some newspaper printed in the county where the 
land is situate, if any, otherwise in some adjacent county. — 
id. s. 6. 

(a) It has been decided that a sale by the collector before he has received back the 
copy is illegal.— 3 R. 36; Digest, p. 602, s. 155. And it would seem that he has no au- 
thority to advertise. 

9. Advertisement, requisites of. The advertisement 
shall contain the same name, same description of the land 
taxed and amount of tax, which is inserted in the collec- 
tor's list, and the time and place of the sale ; and shall be 
published three weeks successively (1), commencing at 
least eight weeks before the sale. — id. p. 127, s. 7. 

The form of the advertisement may be as follows : 
collector's sale of non-resident lands. 

The copy of the list of the following described real estate 
and taxes for the year 18 — of persons not resident in the 
town of , has been received from the deputy secre- 
tary, and the undersigned will sell at auction, on the — day 

of next, at , in said town, at eleven o'clock in the 

forenoon, unless prevented by previous payment, so much 
of said real estate as will pay the taxes upon each tract res- 
pectively with incidental charges. 

[Here insert names, description, No. of lot and range, the 
number of acres and the taxes, and precisely as in the tax 
list.] 

Dated at said , this — day of , 18 — . 

, Collector of . 

(1) A publication Saturday, November 2, Tuesday, November 12, and Tuesday, 
November 19, was held sufficient, the publication das T having been changed after the 2d 
from Saturday to Tuesday.— 31 Ii. 501, Digest, p. 602, s. 160. 



198 COLLECTION OF TAXES OF NON-RESIDENTS. 

10. Posting in town. A similar advertisement shall be 
posted at some public (1) place in the town where the lands 
lie, during the same period. — id. s. 8. v 

(1) What is a public place— see ante, p. 36, s. 10 (c). 

11. Sale, requisites of. Every such sale shall be at 
auction, in some public place in the town or place where the 
land is situate, and between the hours of ten in the fore- 
noon and six in the afternoon, and shall be of so much 
of the owner's estate as will pay the taxes and incidental 
charges ; but, if necessary, the sale may be adjourned from 
day to day, not exceeding three days, by proclamation 
made at the place of sale within the hours aforesaid. — id. 
s. 9. 

9 12. Account of sales. The collector shall, within ten 
days after any sale, deliver to the town clerk an account of 
the sales, with the charges of sale, under oath, copies of the 
newspapers in which the advertisement was published, and 
the advertisement posted, with an affidavit that it was so 
posted, which shall be kept on file. — id. s. 11. 
(a) The form of the account may be as follows : 

SALE OF NON-RESIDENT LANDS. 

The following is an account of the sales for taxes for the 
year 18 — , of the real estate of persons not resident in the 

town of , on the — day of 18 — , at , in 

said town. 

Lot No. 10, in the 5th range of lots in said town, was 

sold (1) to for the sum of dollars and — cents, 

the amount of the tax thereon, which was dollars and 

— cents, and incidental charges thereon, which were 

dollars and — cents, he being the highest bidder for the 
same. 

Lot No. — , etc., etc. 

By the conditions of sale which were publicly made 
known at said sale, the person who would pay the tax and 
incidental charges upon any parcel of land for the smallest 
quantity thereof, was to be deemed the highest bidder. 

Said sale commenced at eleven o'clock in the forenoon, 
and closed at — o'clock in the afternoon of said day. 

The whole charges of said sale were as follows : [here 
insert the items,] amounting in all to the sum of 



COLLECTION OF TAXES OF NON-RESIDENTS. 199 

dollars and — cents, and I have made out an equal propor- 
tion of the same to each lot or tract sold as aforesaid. 

Dated at said , this — day of 18 — . 

-, Collector of . 

C ss. 18 — . Then appeared , collec- 
tor of the town of , and made oath that the above 

account by him signed is true. 
Before me, 

, Justice of the Peace. 

(1) If the sale is of less than the whole lot it should be of one-half, one-fourth, one 
eighth, etc. ; or if <df so many acres they must be bounded and described, or the sale will 
be void for uncertainty.— 19 R. 290; Digest, p. 256, s. 172. 

(b) The affidavit of posting may be as follows : 

I hereby certify that the within [or " above "] advertise- 
ment by me signed was posted by me on the — day of 

18 — , at , a public place in the town of , and 

that the same in my belief remained so posted until the 
time of sale therein mentioned. 

, Collector of . 

C ■ ss. , 18 — . Then appeared , collec- 
tor of the town of , and made oath that the above 

certificate by him signed is true. 

Before me, 

, Justice of the Peace. 

13. Recording, and evidence. Said account, advertise- 
ment and affidavit shall be recorded by the town clerk, and 
a certified copy of such record (1) shall be competent evi- 
dence. — id. s. 10. 

Form of recording, see ante, p. 85, s. 42 (c). 

CI) Where the record had been destroyed by fire, proof of its contents was held 
admissible.— 47 R. 236; and see Digest, p. 355 (b). 

14. Right to redeem. . Any person interested in land so 
sold, may redeem the same by paying or tendering to the 
collector or his administrator, or, in his absence, at his 
usual place of abode, at any time before a deed thereof is 
given by the collector or his administrator, the amount for 
which the land was sold, with twelve per cent, interest 
thereon from the time of sale to the time of payment or 
tender. — id. s. 11. 

15. Subsequent tax. After the collector has received 
his list from the deputy secretary, the purchaser of land so 
sold may pay to the collector any tax assessed upon the 



200 COLLECTION OT TAXES OF NON-RESIDENTS. 

land subsequent to that for which it was sold, and if the 
collector's receipt therefor is left with him to be delivered 
to the person redeeming the land, the amount so paid on 
account of the subsequent tax, with interest thereon, shall 
also be paid to the collector by the person claiming the 
right to redeem, in order to redeem the land. — id. s. 12. 

16. Receipt for payment. Upon such payment or ten- 
der, the collector or his administrator shall give a receipt 
therefor, and shall pay over the money so paid or tendered 
to the purchaser upon demand. — id. s. 13. 

17. Leaving money with clerk. If a tender is made in 
the absence of the collector or his administrator, at his 
house, the party tendering shall, before the time of redemp- 
tion expires, leave the money so tendered with the town 
clerk, for the use of such collector, with a notice of the 
tender, which shall be forthwith recorded by the town 
clerk, who shall give a receipt for the same, and shall be 
paid by the person making such tender, as his fees, ten per 
cent, upon the amount so tendered. — id. s. 14. 

Such notice may be as follows : 
To the Town Clerk of : 

You are hereby notified that on the — day of 18 — , 

I tendered the sum of dollars and — cents at the 

usual place of abode of , collector [or, " adminis- 
trator of , the collector "] of said town, for the year 

18 — , to redeem Lot No. 5 in the 6th Range from a sale 

made by said collector on the — day of 18 — , and 

said being absent at the time of said tender, said 

sum is herewith left with you for his use. 

Dated at said , this — day of 18 — . 

, Collector of . 

18. Part redemption. Every person interested with 
others in any land may pay his proportion of the tax, and 
the residue only shall be sold ; or he may redeem his share 
of the land when sold, by paying his proportion of the tax, 
cost and interest. — id. s. 15. 

19. List of lands redeemed. Within ten days after the 
expiration of one year from the sale, the collector shall 
leave with the town clerk, to be recorded, a correct list of 
the lands so redeemed. — id. s. 16. 

Such list may be as follows : 



COLLECTION OF TAXES OF NON-RESIDENTS. 201 

LIST OF LANDS REDEEMED. 

The following is a correct list of lands redeemed from 

my sale of 18 — , for the taxes of the year 18 — . 

Lot No. 5 in the 6th range, redeemed by . 

Lot, etc., etc. 

Witness my hand this — day of 18- 



Collector of 



20. Deed after one year. The collector, if living, 
otherwise his administrator, after one year from the sale, 
shall execute to the purchaser or his heirs, on request 
therefor, a deed of the land so sold and not redeemed, 
which shall be substantially in the following form : 

Knoiv all Men hy these Presents, That I, , collector 

of taxes for the town of , in the county of 

and state of New Hampshire, for the year 18 — , by the 
authority in me vested by the laws of the state, and in con- 
sideration of , to me paid by , do hereby sell 

and convey to him, the said , his heirs and assigns, 

[here describe the land sold] to have and to hold the said 

premises with the appurtenances to him , his heirs 

and assigns forever. And I do hereby covenant with said 

, that in making sale of the same I have in all 

things complied with the law, and that I have good right, 
so far as that right may depend upon the regularity of my 
own proceedings, to sell and convey the same in manner 
aforesaid. 

In witness whereof I have hereunto set my hand and 
seal, the — day of , 18 — . 

Signed, sealed and delivered in presence of . — id. 

p. 128, s. 17. 

(a) The collector cannot be sued upon such a covenant. — 14 R. 317 ; 22 R. 257 ; Di- 
gest, p. 219, s. 45. 

21. Highway tax. Every non-resident shall have the 
right, at any time between the first day of June and the 
twentieth day of July, to pay any highway tax assessed on 
his land in labor, under the direction of such surveyor of 
highways or other proper person as the selectmen may 
designate ; and such selectmen or surveyor shall give to 
such non-resident a certificate of the amount of such labor, 
which shall be received by the collector and by the town 
clerk in payment of such tax. — id. s. 18. 



202 COLLECTION OF TAXES OF NON-RESIDENTS. 

22. Fees of collector. The fees of collectors shall be 
as follows : for travel to the deputy secretary for the copy 
of his list, thence to the place where the advertisements for 
the sale are to be printed, and returning home, five cents 
per mile ; for advertising in the newspapers and in town, 
one dollar ; for making the sale, one dollar a day, and the 
same sum for a clerk ; for each deed made to a purchaser, 
twenty-five cents ; the sums actually paid the printers, not 
exceeding one dollar and fifty cents a square for three in- 
sertions, and the cost of the necessary revenue stamps, 
shall be a legal charge — id. s. 19 ; and for the copy retained 
by the deputy. — s. 5, ante. 

23. Apportionment of. The collector shall make out an 
equal proportion of his fees and charges, and of the sums 
paid to printers, to each lot or tract of land advertised or 
sold as aforesaid ; and no person shall be holden to pay 
any more costs than his just proportion of those incurred at 
the time of the payment of his tax. — id. s. 20 ; Digest, p. 
602, s. 174. 

24. Illegal fees do not invalidate the sale — 17 R. 393, 
407 ; 6 R. 182 ; but they subject to a penalty. See s. 13, 
ante, p. 185. 

25. Any separate interest in land, and any buildings, 
timber or wood, standing or growing on land owned by 
another person, shall be taken to be real estate, within the 
meaning of this and the preceding chapter. — id. s. 22. 

26. Requisites for a valid tax title. These are : 

I. A legal assessment, and this implies an assessment 
correct in form upon legal votes at a meeting duly called 
and holden. A tax against an individual too large, though 
by a few cents only, is illegal. — 17 R. 394. But if the 
assessment is in general correct it is no objection to a sale 
for a particular tax, that a tax against another person, 
or upon another lot, is excessive or otherwise illegal. 

ii. A legal and sufficient warrant and tax-list, both signed 
by a majority of the selectmen, committed to the collector 
on or before the thirtieth day of May.— 6 R. 182 ; 37 R. 
317 ; Digest, p. 602, s. 154. 

in. The decision in 6 R. 182, that the purchaser must 
show that the invoice, or a copy thereof, was left with the 
town clerk prior to the first day of July, does not seem to 



COLLECTION OF TAXES OF NON-RESIDENTS. 203 

have been overruled so far as relates to non-resident taxes, 
and since the requirement is for the benefit of the land- 
owner, a compliance with it may be indispensable. — 37 R. 
312 ; Digest, p. 602, s. 154. 

iv. The delivery to the deputy secretary of a certified 
copy of the list on or before the eighth day of the June ses- 
sion.— 17 R. 393, 408, 420 ; Digest, p. 602, s. 156. 

v. The return of the copy after the first day of Septem- 
ber, and before advertising and selling. — 3. R. 36. 

vi. A legal posting in some public place in the town 
where the land lies, and publishing in newspapers. 

vii. If any portion of the tax has been paid the sale must 
be for the residue only.— 17 R. 394 ; Digest, p. 602, s. 172. 

viii. The sale must conform to the advertisement, the 
offer to sell and the sale being of so much of the land as 
will pay the tax upon it and incidental charges. 

ix. The sale must be between the hours of ten in the 
forenoon and six in the afternoon, unless the sale is 
adjourned, for one day at a time only and not exceeding 
three days in the whole, by proclamation at the time and 
place of sale, and be within one year from the first day of 
June next after the assessment of the tax. 

x. The return within ten days after the sale of a suffi- 
cient account of the sale, under oath, showing to whom each 
parcel was sold.— 6 R. 182 ; Digest, p. 602, ss. 168, 169, 173. 

xi. It may be necessary that such account be recorded as 
required by law. 

xii. If the land has been redeemed, the deed will be inop- 
erative ; and the return of the list of lands redeemed may 
be indispensable, although it has been held that the provis- 
ion in regard to the filing of the newspapers is directory 
only, and the title may be valid without it. — 17 R. 420 ; 
Digest, p. 602, s. 176. 

xiii. The return of the affidavit of posting may be indis- 
pensable. 

xiv. Illegal fees will not vitiate the sale. — 17 R. 394. 

xv. It is sufficient for the purchaser to show that the 
selectmen and collector were acting officers, and their neg- 
lect to take the oath of office will not defeat his title. — 24 R. 
212 ; 7 R. 113, 131 ; 17 R. 420 ; 37 R. 309 ; 19 R. 290 ; 
Digest, p. 499, ss. 36, 38, 39, p. 595, s. 6. 

If the collector comes in by an appointment it seems that he 
has no authority to act until it has been recorded. — 37 R. 312. 



204 



TAXATION OF RAILROADS. 



CHAPTER XXXVII 



TAXATION OF RAILROADS. 



Taxes upon railroads, 

Assessed by supreme court, s. 5. 
How distributed, s. 6. 
How expended, s. 7. 



Disagreement in returns, s. 4. 
Invoice of shares, s. 1. 
Neglect to invoice, penalty for, s. 3. 
Return of shares, by selectmen, ss. 2, 3. 
Selectmen to invoice and return, 
ss. 1, 2, 3. 

1. Invoice of shares. The assessors of every town shall 
annually take an inventory of the number of shares owned 
by the several inhabitants therein in each railroad corpora- 
tion in this state, on the first of April ; and on or before 
the first day of June annually shall transmit to the state 
treasurer a statement under oath of the number of shares 
in each railroad corporation owned in such town, as ascer- 
tained from such inventory or otherwise ; the names of the 
owners and number of shares owned by each, and in what 
corporations ; and that said shareholders were, on the first 
day of April preceding, inhabitants of said town. — Gen. Sts. 
p. 131, c. 57, s. 11. 

Such an invoice may be as follows : 



INVOICE OF RAILROAD SHARES IN THE TOWN OF 
APRIL 1, 18 — . 



Names of Owners. 


Number of 
Shares. 


Name of Corporation. 




200 


Boston, Concord & Montreal R. R. 


o \4 , 


G N , 


100 


Northern Railroad. 



The above is an invoice of the number of shares owned 

by the several inhabitants of the town of , in each 

railroad corporation in this state on the first day of April, 
18—. 

Witness our hands, this day of , 18 — . 

) Selectmen 

> of 



2. Statement to the state treasurer may be in the 
same form, except the certificate, and instead of that, as 
follows : 



«* * •. 



i. 



TAXATION OF RAILROADS. 205 

R , , 18 — . We certify that the above is a 

correct statement of the number of shares owned by the 

several inhabitants of the town of , in each railroad 

corporation in this state on the first day of April, 18 — . 

) Selectmen 

\ of 



3. Neglect to invoice. If any town shall, by its asses- 
sors, neglect to comply with the provisions of the preceding 
section, it shall receive no part of the tax which it would 
be entitled to receive from the state treasury upon the rail- 
road shares owned therein ; and such assessors shall be lia- 
ble to such town for all damages arising from their default. — 
id. s. 12. 

4. Disagreement in returns. In case of disagreement 
of the returns of the railroad treasurers and of the asses- 
sors, the state treasurer shall determine, upon the evidence, 
to what town any shares shall be credited. — id. s. 13. 

5. The taxes are imposed by the justices of the supreme 
court. — id. p. 130, ss. 1-6. 

6. They are distributed by the state treasurer in Sep- 
tember, every year, as follows : 

i. To the towns in which any railroad is located, one 
fourth of the tax paid by the railroad corporation, of which 
each town shall receive its proportion according to the 
share of the capital of the corporation expended therein for 
its buildings and right of way. 

ii. To each town in the state in which any stock in the 
road was owned on the first day of April preceding, such 
proportion of the residue of said tax as the number of 
shares owned- in said town bears to the whole number of 
shares in the corporation. 

in. The remainder for the use of the state. — id. s. 7. 

7. The money thus received by every town is to be ap- 
propriated as other town money. — id. s. 8. 



o^^^rfx. 



206 BANK STOCK AND SAVINGS BANKS. 



CHAPTER XXXVIII 



BANK STOCK AND SAVINGS BANKS. 



Bank, to pay tax, when, ss. 1, 5. 

Action by, for tax paid, s. 6. 

Lien by, for tax paid, s. 6. 
Bank stock, where taxed, s. 1. 

At par value, s. 1. 
Cashier, to send lists of shares, ss. 2, 3. 

Penalty for neglect, s. 4. 
Deposits in savings banks, ss. 7-9. 
Lien, for tax, ss. 1, 6. 



Lists of stockholders in banks, 

By cashier, ss. 2, 3, 4. 

By selectmen, s. 4 (1). 
Non-resident owners, ss. 1-6. 
Repeal, by implication, s. 4 (1), s. 5 (1). 
Resident owners of stock, ss. 1-6. 
Savings banks, deposits in, ss. 7-9. 
Selectmen, duties of, ss. 1, 4 (1). 
State treasurer, duties of, ss. 8, 9. 



1. Bank stock. All shares of the capital stock of the 
banks located in this state, whether private, state, or 
national, shall be taxed at their par value, to the owners 
thereof, in the town in which they reside, if in this state. 
All shares standing in the names of persons residing out of 
this state shall be taxed to the person in whose name such 
shares may stand in the town where the bank is located ; 
and such taxation shall create a lien in favor of the town 
where such bank is located upon such shares for the pay- 
ment of said taxes. — Laws of 1868, p. 149, c. 15, s. 1. 

2. Cashier to transmit lists. It shall be the duty of 
the cashier of every such bank, on or before the fifth day of 
April in each year, to make out and send a notice in writ- 
ing to the selectmen or assessors of the several towns or 
cities in this state, in which persons or parties may reside 
who own shares in their respective banks ; in which notice 
shall be stated the name or names of the person or persons, 
party or parties, who own shares in their respective banks 
on the first day of April in each year, the number of shares 
owned by each and the par value of a share, and to deposit 
said notice in the post-office in the town in which any such 
cashier may reside, directed to the selectmen or assessors 
aforesaid. — id. s. 2. 

The requirement of ss. 1, 2, c. 58, Gen. Sts. that a list 
shall be sent to the town clerk, is perhaps superseded by the 
Act of 1868, but if superseded, the notice to the selectmen 
should show the amount paid in on each share not paid in 
full, and the party be treated as owner of one half, or one 
quarter, etc. See 7 R. 124 ; Digest, p. 597, s. 40. 

3. Such cashier on or before the fifth day of April in 
each year, shall furnish to the selectmen or assessors of the 
town or city where said bank is located a like list of the 



BANK STOCK AND SAYINGS BANKS. 207 

stockholders of said • bank not resident in the state, the 
number of their shares and the par value of the same. — id. 
s. 3. 

4. Penalty for neglect. The cashier of any bank in 
this state, who shall neglect or refuse to comply with the 
provisions of the preceding sections, shall forfeit the sum of 
one hundred dollars for each offence (1), to be recovered 
by indictment, for the use of the town in which persons or 
parties may reside owning shares as aforesaid, and for the 
use of the town in which the bank may be located, when the 
persons or parties owning shares therein are not residing 
within this state. — id. s. 4. 

(1) Section eleven of chapter fifty-eight. Gen. Sts., which imposes a greater penalty, 
Is repealed by implication. — Digest, p. 589, ss. 56-59. The returns required, of select- 
men by ss. 3", 4, 5, of that chapter, are probably no longer necessary, and ss. 6, 7 and 
8 of that chapter are also inoperative or superfluous. 

5. Bank liable for tax. The collector having a tax 
against any stockholder of a bank not resident in the town 
where the bank is located when the tax was assessed, may 
demand payment of said tax of the cashier or other officer 
of the bank (1), and the same shall be paid by the bank ; 
and the same proceedings may be had enforcing payment 
of the tax as if it were legally assessed against the bank. — 
Gen. Sts. p. 133, c. 58, s. 9. 

(1) This is probably still in force, as it is not " inconsistent " with the act of 1868. 

6. Lien by bank. The bank may recover of any such 
stockholder the amount of tax paid by said bank, assessed 
upon his shares, and shall have a lien upon said shares and 
the dividends thereon for the payment of said amount with 
interest. — id. s. 10. 

7. Deposits in sayings banks. The treasurers of sav- 
ings banks shall annually, on or before the first day of May, 
transmit to the secretary of state a statement under oath 
of the amount of deposits and accumulations in their 
respective savings banks, due therefrom or on deposit 
therein, on the first day of April next preceding, and the 
name and residence of each depositor residing in this state ; 
showing the whole amount of deposits and accumulations 
due to the depositors in each town in the state separately, 
and the whole amount due to depositors not resident in the 
state. — id. s. 12. 



208 



EXTENTS. 



8. Tax upon, paid to state treasurer. Every savings 
bank shall pay annually, on or before the first day of July, 
to the state treasurer, a tax of three-fourths of one per cent, 
on the whole amount of the deposits and accumulations 
therein on the first day of April next preceding ; and no 
other tax shall be assessed on said deposits or accumula- 
tions, or against the depositors on account thereof. — id. s. 
13. 

9. And by him distributed. The state treasurer, on or 
before the first day of October annually, shall pay to each 
town in which any of said depositors resided on the first 
day of April next preceding, such part of said tax as 
would be in proportion to the amount of said deposits and 
accumulations held by residents of said town on said day. 
id. s. 14. 



CHAPTEE XXXIX. 



EXTENTS. 



Alias extent, may issue, s. 14. 
Collector, liable to extent, ss. 4, 5. 

Indemnity to, by selectmen, ss. 15, 19. 
Extents are executions, s. 7. 

Form of, by selectmen, ss. 8, 17. 

Form of, by treasurer, ss. 8, 16. 

How levied, s. 9. 

Upon property of inhabitants, s. 10. 
Notice of extent, by selectmen, ss. 5, 
19. 

Form of notice, s. 19. 



Remedy over, by an inhabitant, s. 11. 

By selectmen, s. 13. 

By town, s. 12. 
Returnable in not less than sixty days, 

s. 8. 
Selectmen may issue an extent, s. 6. 

Are liable to an extent, ss. 3, 5. 
Sheriff or his deputy to levy, s. 8. 
Treasurer may issue extents, ss. 1, 2, 3, 
4, 5, 16. 



1. Treasurers may issue. The state treasurer, and each 
county and town treasurer, may issue extents under their 
hands and seals respectively, in cases authorized by law. — 
Gen. Sts. p. 134, c. 59, s. 1. 

2. Against towns. Any town which shall neglect to 
choose proper officers for assessing or collecting taxes, shall 
be liable to an extent for state and county taxes ; and when 
an extent is issued against any selectmen or collector by 
the state or county treasurer, and sufficient property of such 
selectmen or collector cannot be found whereon to levy the 
same, an extent may be issued against the town. — id. ss. 
2,7. 



EXTENTS. 209 

3. Against selectmen. Selectmen who neglect to assess 
any tax for which they have the warrant of the state or 
county treasurer, at the time and in the manner legally pre- 
scribed therein, or who neglect to return to either of such 
treasurers or to the town treasurer the name of the collector 
to whom they may commit any tax assessed by them and 
payable to such treasurers respectively, shall be liable to an 
extent. — id. s. 3 ; see s. 6, post. 

4. Against collector. Any collector to whom a tax is 
committed who neglects to pay the same to the state, county 
or town treasurer, or to the selectmen or other person to 
whom the same is payable, within the time limited in his 
warrant, which shall not be less than three months from the 
delivery of such warrant, except in cases where a shorter 
time is limited by law, shall be liable to an extent. — id. s. 
4 ; see s. 5. 

5. No extent shall be issued by the state or county 
treasurer against any collector, after notice given by the 
selectmen that they have issued an extent against him ; 
but if such tax is not paid within three months from the 
time the same became payable, an extent may be issued 
against such selectmen. — id. s. 6. 

6. Selectmen may issue. If any collector to whom any 
tax payable to the state or county treasurer is committed 
neglects to pay the same within the time limited in his war- 
rant, and the selectmen of the town shall judge that there 
is danger that such collector will abscond or be unable to 
pay the same, they niay issue an extent against such col- 
lector for the taxes in arrear. — id. s. 5. 

7. Extents are executions against the person and 
property. — id. ss. 1, 5. 

8. To whom directed, etc. Extents shall be directed 
to the sheriff, or his deputy, of the county where they are 
to be executed, and shall be made returnable to the officer 
issuing the same, at a certain day named therein, which 
shall not be less than sixty days from the date thereof. — id. 
p. 135, s. 10. 

9. How levied. Personal property seized upon any 
extent shall be sold in the same manner as similar property 
is required to be sold on execution. Real estate of every 
kind so levied upon shall be sold, and a deed and return 
thereof made, in the manner provided by law for the sale 

14 



210 EXTENTS. 

of the equity of redemption of real estate mortgaged ; and 
the owner thereof shall have the same right to redeem the 
same. — id. ss. 8. 9. 

10. Upon estate of inhabitants. An extent against a 
town may be levied upon the property of any inhabitant or 
owner of property therein if no estate of the town can be 
found upon which to levy. — id. p. 134, ss. 1, 7. 

11. Remedy over by inhabitant. Every person upon 
whose property an extent against any town has been levied, 
shall have contribution against the other inhabitants or 
owners of property therein, for the sums so levied, and for 
damages, and shall recover double costs. — id. p. 135, s. 13. 

12. By towns. Towns shall have their remedy, by action 
against any selectman or collector through whose default 
any extent may have issued, for all sums levied thereon, 
and for damages and double costs. — id. s. 14. 

13. By selectmen. Selectmen shall have their remedy, 
by action against any collector through whose default any 
extent may have issued against them, for all sums levied 
thereon, and for damages and double costs, but shall have 
no remedy against any town for any sum levied upon any 
extent issued against them on their own default, except the 
amount of tax, iviihout any costs of levying or costs of suit, 
id. ss. 15, 17. 

14. Alias may issue. If any extent shall be returned 
unsatisfied, further or alias extents may be issued for any 
sum which may remain due upon such return, and may in- 
clude the legal fees and charges incurred upon any former 
extent issued for the collection of the same tax. — id. ss. 
11,12. 

15. Indemnity to collector. Selectmen issuing any ex- 
tent against a collector, shall indemnify him against all 
costs and expenses arising to him by reason of any extent 
issued against him by the state or county treasurer for the 
same tax. — id. s. 16. 

16. Form of an extent by a town treasurer. 

state of new hampshire. 
H ss. 

To the Sheriff of said county or his Deputy : 

[L. S.] Whereas A B of , in said county, 

a collector of taxes for said town, duly elected [or " ap- 



EXTENTS. 211 

pointed " if such is the fact] and sworn, on the — day of 

last received from the selectmen of said town a list 

under their hands, of taxes duly voted and assessed, amount- 
ing to the sum of dollars and cents, with a warrant 

under their hands and seal, requiring him to levy and col- 
lect said taxes and pay to the treasurer of said town the 

sum of dollars on or before the — day of last, 

which last mentioned sum [or " dollars of which last 

mentioned sum "] is still unpaid. 

In the name of said state you are commanded to levy the 

said sum of dollars by distress and sale of the real 

and personal estate of the said collector, and pay the same 
to the treasurer of said town, and for want of such estate to 

take the body of the said A B and him commit 

to the jail in said county, there to remain till he has paid 

said sum of dollars and your fees and lawful prison 

charges, or is discharged by due order of law. 

And make return of this warrant with your doings there- 
on to me, treasurer of said town, on the — day of 

next. 

Given under my hand and seal at said , this — 

day of , 18 — . 

, Treasurer of said town. 

17. An extent by selectmen may be in the same general 
form, substituting " county treasurer" or " state treasurer 
for town treasurer, and inserting after the word " unpaid " 
the following : " and whereas we, the selectmen of said town, 
judge that there is dajuger that said collector will abscond 
or be unable to pay said sum." In the name, etc. The 
warrant will be made returnable to the selectmen by whom 
it is issued at a day named therein, which must be not less 
than sixty days from its date. 

18. Form of indemnity to the collector as required by 
statute, section 15, ante. This may be by a bond in com- 
mon form with sufficient sureties and a penal sum twice as 
large as the taxes in arrear. The condition of the bond 
may be : 

The condition of this obligation is such that whereas the 

selectmen of said town of have issued an extent 

against said , collector of said town ; now if we shall 

fully indemnify said collector against all costs and expen- 



212 



RETURN OF INVENTORIES TO SECRETARY OP STATE. 



ses arising to him by reason of any extent issued against 
him by the county treasurer [or "the state treasurer" if for 
a state tax] for the same tax, then this obligation shall be 
void, otherwise in full force. 

19. Notice op an extent may be as follows : 
To the Treasurer of the county of : 

You are hereby notified that we, selectmen of ■ — , in 

said county, have issued an extent against , col- 
lector of said town for the year 18 — , for his neglect to pay 
over the county tax as required by his warrant. 

Witness our hands this — day of , 18- — . 

) Selectmen 

' \ of 



CHAPTER XL. 



RETURN OF INVENTORIES TO SECRETARY OF STATE. 



Abstracts of inventories to be made 
by secretary of state, s. 6. 

Blanks to be furnished by him to select- 
men, s. 6. 



Inventories for 1867, 1868, s. 1. 

And every four years, s. 3. " 

What to contain, s. 2. 
Notice to attorney-general, s. 5. 
Penalty for neglect to return, s. 4. 



1. Return for 1867 and 1868. The selectmen of every 
town, at the charge of the town, shall transmit to the office 
of the secretary of state, on or before the fifteenth day of 
May, 1868, an entire inventory of the polls and ratable 
estate of such town, as taken in April for that year ; and a 
like inventory of said polls and estate as taken in April, 
1867.— Gen. Sts. p. 135-6, c. 60, s. 1. 

2. What to contain. Said inventories shall contain the 
footings of each column of the invoices of all polls and 
property taxed in the town in April in each of said years. — 
id. s. 2. 

3. Like returns every fourth year. On or before the 
fifteenth day of May in every fourth year thereafter, the 
selectmen of every town shall transmit to the office of the 
secretary of state like inventories, to be made from the in- 
voices for the then current and next preceding years. — id. 
s. 3. 

4. Penalty for neglect. If the selectmen of any town 



RETURN OF INVENTORIES TO SECRETARY OF STATE. 213 

shall neglect to transmit such inventories in the manner 
aforesaid, with their certificate as said selectmen to the 
truth of their said inventories, they shall be fined for each 
refusal or neglect not less than twenty nor more than fifty 
dollars, for the use of the town. — id. s. 4. 

5. Notice to attorney-general. The secretary of state, 
as soon as may be after said fifteenth day of May in each of 
said years, shall give information to the attorney-general of 
all such refusals and neglects, that such selectmen may be 
prosecuted therefor ; but such prosecution shall be com- 
menced within six months from said fifteenth day of May, 
and not afterward. — id. s. 5. 

6. Blanks to be furnished and abstracts made. The 
secretary of state shall furnish the selectmen with blank 
inventories, in form as aforesaid, on or before the first day 
of April, 1868, and on or before the first day of April in 
every fourth year thereafter ; and when said inventories are 
returned as aforesaid, he shall make out an abstract of the 
footings, or amount of the several inventories, arranged by 
counties, and procure four hundred copies thereof to be 
printed and laid before the general court at the commence- 
ment of its session next after said inventories are returned. 
— id. s. 6. 



TITLE V 



HIGHWAYS. 



CHAPTER XLL- 
CHAPTER XLIL- 
CHAPTERXLIIL- 
CHAPTER XLIV.- 
CHAPTER XLV.- 
CHAPTER XLVL- 



-Laying Out and Discontinuing Highways. 

-Making and Repairing Highways. 

-Highways not in any Town. 

-Special Damage to Travelers. 

•Removal of Incumbrances upon Highways. 

-Special Provisions Relating to Highways. 



CHAPTEE XLI 



LAYING OUT AND DISCONTINUING HIGHWAYS. 



Adjoining towns, highways in, ss. 26- 

28, 40, 44. 
apfeau from selectmen, ss. 46-49, 58. 
Appointment of commissioner, s. 63. 
Boating, obstruction of, s. 10. 
Bond to indemnify town, s. 24. 

To petitioners for costs, s. 49. 
Change of circumstances, s. 43 (3), s. 52 

CD- 
Commissioners, powers and duties, ss. 
54-76. 

Fees of, s. 77. 
Contributions to expenses of highway. 

By county, ss. 19, 41, 48. 

By other towns, ss. 71-74. 
Corporate property, taking of, s. 11. 
Costs, security for, s. 49. 
Costs of laying out highway, 

Apportionment of, s. 28* s. 40 (d) s. 75. 

County to pay when, ss. 18, 19, 41. 

Town to pay when, s. 18. 
County aid, ss. 18, 19, 41. 
Discontinuance of highways, 

By committee of town, s. 29 (d). 

By operation of law, s. 9 (b), s. 29 (a). 

By vote of town, ss. 29, 42. 

Consent of court, ss. 29, 30. 



Damages upon, ss. 25, 31, 32,48 (1). 

Of private roads, s. 29 (b). 

Of public landings, s. 29 (f . 

Reconsideration of vote tor, s. 29(e). 

When it takes effect, s. 29 (e). 

Without reservation , s. 29 (c). 
Evidence before commissioners, s. 56. 
Examination of route, ss. 7, 60. 
Execution for damages and costs, s. 60. 
Ex-Parte statements, s. 66 (1). 
Gates and bars, ss. 12. 13, 37, 38, 44. 
Grade to be fixed by commissioners, s. 70. 
Guardian, notice to, ss. 4, 21. 
Hearing before commissioners, ss. 56, 62, 
66. 

Before selectmen, ss. 2, 34, 35. 
Highways, not in any town, s. 44. 
Indemnity when required, s. 24. 
Insane person, damages to, s. 21. 
Intermediate bounds, ss. 8, 33. 
Joint board of commissioners, s. 26, (1). 

Of selectmen, ss. 26-28, 40. 
Jury to assess damages, s. 15 (e). 
Land damages, action for, ss. 23, 25. 

Amount of, s. 15 (c) (d) (e). 

Appeal from assessment of, ss. 46-49. 



LAYING OUT AND DISCONTINUING HIGHWAYS. 



215 



Apportionment of, ss. 28, 75. 

Assessment of, s. 15, s. 36 (h), s. 69. 

By whom, to be paid, ss. 17-19. 

Deductions from, s. 15 (,e). 

Neglect forward, effect of. s. 15 (f). 

Payment«f required, ss. 20-22. 

Persons entitled to, ss. 3 (a), 9, 15 (I) 
(a)(b). 

Release of if not entitled, s. 55 (a). 

Upon a discontinuance, ss. 25, 31, 32, 
47. 

When owner is unknown, ss. 16, 36 (f). 
Land owner, right of to use road, s. 78. 
Laying out highways, 

Bv commissioners, ss. 44, 45, 50-61. 

By selectmen, ss. 1-16, 33-37. 

For public good only, s. 1 (a) (b). 

Should be accessible, s. 8 (c.) 

When presumed legal, s. 1 (c). 
Lessor and lessee, s. 15 (l). 
Minors, damages to, ss. 4, 21, 36 (g). 
mortgageor and mortgagee, s. 3 (a). 
Navigable waters, s. 10. 
Notice of hearing before commissioners, 
s. 62, s. 62 (a). 

Before selectmen, ss. 3-6, 34, 35. 

Of petitions in court, s. 50. 

Evidence of notice, s. 34 (3). 

Waiver of notice, s. 36 (1). 
Notice by publication, ss. 6, 34, 35 (a) (b). 
Obstructing navigable rivers, s. 10. 
Petitions to court and forms of ss. 17, 29, 
32, 41, 43, 47. 



Petitions to selectmen and forms, ss. 1, 

13, 26, 33, 37. 
Plan, reference to in laying out, s. 14 (a). 
Pleasure travel, laying out for, s. 1 (b). 
Prescription, roads by, s. 31 (1). 
Private roads, ss. 1, 12 (a), 37, 38, 48. 
Public grounds, s. l (a). 
Public landing, s. 29 (f). 
Rafting and boating, s. 10. 
Railroad, highway over, ss. 15(b) (d), 36 

(e)(m). 
Recording laying out, ss. 14, 36 (t). 

Petition, s. 14 (a). 
Reference of petition, ss. 52-61. 
Report and acceptance, ss. 55, 67, 68. 
River, highway over, ss. 10, 36 (2). 

Ownership of land upon, s. 36 (2). 
Running timber, s. 10. 
Selectmen, duties of. ss. 1-28. 

They act judicially, s. 1 (a). 
Sidewalks, s. 8 (b). 
Tenant for life, etc., ss. 15, 36 (d) (k). 
Tenants in omnion, s. 5 (1). 
Turnpike road, ss. 3 (b). 9 (a), 11 (a). 
Unfinished business, s. 57. 
Vacancies, how tilled, s. 63 (1). 
Void laying out, s. 15 (f). 
Vote of discontinuance, ss. 29, 42. 
Waiver of damages, s. 36 (4). 

Of notice, s. 36 (1). 

Of objections, s. 64 (a). 
Widening and straightening, ss. 8 (a), 9 

(b), 29 (a), 39. 
Width and centre tine, ss. 33 (1), 36 (3). 



1. Selectmen may lay out. Selectmen, upon petition, 
may lay out any new highway, or widen and straighten 
any existing highway within their town for which there 
shall be occasion, either for the accommodation of the pub- 
lic or of the person applying. — Gen. Sts. p. 137, c. 61, s. 1. 

For form of petitions, see ss. 33, 3T, 39, 



(a) The selectmen in laying out a highway act judicially, upon an application in 
writing, and must decide upon their own judgment, uncontrolled by any instructions 
by the town, or any offers by individuals.— 2 R. 199; 10 R. 133; Digest, p. 395, ss. 4-8, 
p. 396, s. 26, p. 397, ss. 34, 35; 5 Pick. 492, 2d do. 549. See 12 Maine, 32, 49, 580; 5 
Cush. 182, 190; 1 Met, 404; 16 Pick. 217; 9 do. 46; 8 do. 218. 

In determining whether the public good requires the road, the benefit to individuals 
as well as the public in general, the burden upon the town, the right of the owner to 
retain his land unless required for a public use, and all circumstances affecting the 
expediency of the proposed new road, may properly be considered.— 35 R. 214, 216 ; 5 R. 
560. 

If the road is asked for to accommodate a public building, some regard may be had 
to looks as well as utility.— 28 Vt. 596. 

(b) A road may be laid out to accommodate pleasure travel.— 35 R. 134 ; Digest, p. 
159, s. 51; 5 Allen, 535. 

(c) A laying out may often be presumed legal from long user and other circumstances 
though the record be imperfect.— Digest, p. 397, s. 46; 37 Maine, 506; 34 do. 243; 2 do. 
55. 

2. Hearing appointed. Unless the selectmen are clearly 
of opinion that the petition ought not to be granted, they 
shall cause notice in writing of a time and place of hearing 
appointed by them to be given to the first petitioner and to 
the owners of the land over which the same may pass, four- 
teen days previous thereto. — id. p. 138, s. 2. 



216 LAYING OUT AND DISCONTINUING HIGHWAYS. 

For order of notice, see ss. 34, So, post. 

3. Notice, to whom given. Such notice shall be given 
to each owner in person, or left at his abode, if he is 
known and resides in the state ; otherwise to the person, if 
any, who has the care or possession of the land. — id. s. 3. 

(a) Ihe mortgageor is entitled to notice, but not the mortgagee unless he is in posses- 
sion.— 11 R. 294; 26 R. 224; 36 R. 84. 

(b) If the road is to pass over a turnpike, the owners of the fee need not be notified 
unless some new interest is taken.— 10 R. 369; Digest, p. 400, ss. 109, 110; 12 Met. 455. 

4. To guardian. If the owner is a person under guar- 
dianship, like notice shall be given to his guardian (1). 
If the owner is under any legal disability a guardian may 
be appointed for him to receive the notice. — id. s. 4. 

(1) The selectmen it is presumed cannot appoint the guardian, and application must 
be made to the judge of probate.— C. S. c. 52, s. 4; Gen. Sts. p. 340, c. 165, ss. 1, 2. 

5. Tenant and reversioner. Tenants for life or years, 
and the owners of the remainder or reversion, shall each 
be separately notified as aforesaid. — id. s. 5. 

6. If owner unknown. Upon affidavit of one of the 
petitioners that the owner of any land over which such road 
may pass, or his residence, is unknown or uncertain, such 
notice (1) may be by publication. — id. s. 6. See s. 35 (a) 

(b>. 

(1) This gives constructive notice, and is sufficient, though it may in fact never reach 
the party.— 18 Pick. 309. 

7. Examination of route. At the time and place so 
appointed, the selectmen shall make a personal examina- 
tion of the several routes proposed, and of the highways 
for which such new highway is designed to be a substitute ; 
shall hear all parties interested (1) who may attend, and 
any evidence they may offer, and may adjourn as they see 
cause. — id. s. 7. 

(1) This includes the petitioners and land-owners, the town and citizens of the town, 
and any one whose property or personal convenience would be directly affected by the 
result; but the selectmen are not to keep the hearing open an unreasonable time.— 39 
R. 259; Digest, p. 401, ss. 121-123. 

8. Intermediate limits, etc. They may lay out such 
highway over any ground they may deem most suitable, 
and alter any highway as they judge proper, without regard 
to intermediate limits or particular amendments described 
in the petition. — id. s. 8. 



LAYING OUT AND DISCONTINUING HIGHWAYS. 217 

(a) Upon a petition to widen and straighten, the selectmen may cut off short curves 
and corners, but cannot lay out an entirely new road.— 40 K. 307, 312; Digest, p. 399, 
s. 77; 11 Maine, 275; 7 Mass. 162. 

(b) In the most frequented parts of our towns and cities, where the public conven- 
ience requires it, sidewalks may be laid out as a part of the highway, or be acquired by 
twentv years' use, and must be kept accessible and in good repair.— Digest, p. 397, s. 
50; 6Cush. 524; 3 do. 174. 

(c) A highway should not be laid out, unless the public can have access to it without 
being trespassers.— Digest, p. 396, s. 27, p. 403, s. 162, p. 413, s. 386. 

9. Oyer an existing highway. They may lay out the 
same across an existing highway ; but no damages shall be 
awarded when the public have the right of way over the 
same land. — id. s. 9. 

(a) This section applies to turnpike roads. Damages, however, are to be awarded to 
the corporation.— 10 R. 369; Digest, p. 400, ss. 109, 110; 13 Allen, 158; ante, s. 3(b); 
post, s. 11, s. 15 (b) (d). 

(b) The parts of an existing highway not included in the new highway are not dis- 
continued in the laying out.— 19 Pick. 309; seejjost. s. 29 (a). 

10. Oyer water. Highways may be laid out across any 
stream (1) or body of water ; but no road or bridge shall 
be so laid out if the reasonable and proper construction 
thereof may prevent the use of such waters for navigation 
for boats or rafts, or for running timber. — id. s. 10. 

For forms, see s. 36, post. 

(1) A stream that is boatable by artificial means only, is not a public highway. — 11 
Maine, 278. Any one who causes special damage by obstructing a public river is liable 
to an action, as well as to an indictment— 51 Maine, 256. 264; 7 do. 273; Digest, p. 337, 
ss. 233, 234, p. 572, s. 7, p. 573, s. 15, p. 162 (c); and so if lie cut holes in the ice in a 
track upon a public river, that has been used in the same place for twenty years. — 18 
Maine, 433. 

A highway may be laid out over land reclaimed from the sea; but not between high 
and low water-mark of a navigable river— 43 R. 603; Digest, p. 396, ss. 28, 29; 1 Grav, 
203; 5 Pick. 492; 3 Met. 206; 5 Gray, 451. But the laying out above high water mark 
will not be void though a portion of the highway is below.— 3 Met. 445; Digest, 404, ss. 
176, 177. 

11. Corporate property. Any real estate, franchise or 
easement of a corporation may be taken for a highway in 
the same manner as the estate of individuals. — id. s. 11. 

Where the whole franchise is not taken, — see s. 15 (b), 
(&~),post. 

(a) A turnpike corporation, over whose road a public highway has been laid, has the 
right to exercise its franchise till the damages awarded have been paid ; and will con- 
tinue, so long as it exercises the franchise, subject to all the incidental burdens. — 17 R. 
444; Digest, p. 409, s. 287. 

12. Gates and bars. Any highway for the accommoda- 
tion of an individual may be laid out, subject to such gates 
or bars across the same as may be expedient, to be erected 
and maintained by the person, his heirs or assigns (1), for 
whose benefit the highway is laid out ; but no other condi- 



218 LAYING OUT AND DISCONTINUING HIGHWAYS. 

tion (2) shall be affixed to the said laying out, or imposed 
upon the individual for whose benefit the laying out was 
made. — id. s. 12. 

For form, see s. 37, post. 

(1) This is a change. Under the act of 1850 (0. S. p. 136, s. 13), heirs and assigns were 
not liable.— 42 R. 362 ; Digest, p. 409, ss. 282, 283. 

(a) A highway laid out for the accommodation of an individual, although subject to 
gates and bars, is still a public highway, and the town is liable for special damages 
caused by want of repairs.— 42 R. 348, 364 ; 3 R. 459 ; Digest, p. 397, s. 49. But it is not 
liable to the owner of the land for injury to his crops by the neglect of the person for 
whose accommodation the road was laid to keep up the bars or gate.— 42 R. 362; Digest, 
p. 409, s. 282. 

Neglect by the traveler to put up the bars does not make him a trespasser, but he 
may be liable in an action upon the case for special damages. — 48 Maine, 423. 

(2) If selectmen lay out a private way "to be used only during sleighing," the re- 
striction is void, but the laying out valid notwithstanding. — 4 Allen, 529. 

13. To be eemoved, when. When such gates become 
unnecessary or inexpedient, the selectmen (1) may, on 
petition, notice and hearing, cause them to be taken away, 
and lay out such road as an open highway, and assess such 
further damages to the land-owners as they shall judge 
proper. — id. s. 13. 

(1) The decision of the selectmen is not final, but subject to appeal by the petitioner 
or land-owner. — 47 R. 223, 225 ; see s. 44, post. 

14. Return of laying out. The selectmen shall, within 
thirty days, make a return of every highway by them laid 
out, describing the same and the width thereof, and a like 
return of the alterations by them made in existing high- 
ways, with a particular description thereof, and cause the 
same to be recorded by the town clerk. — id. s. 14. 

(a) The description may be by reference to a, plan or survey.— 39 R. 295; 6 Cush. 270; 
5 Gray, 397; 14 do. 564; 1 do. 215; but this mode is not often advisable. To guard 
against loss the petition as well as the return should be recorded. — 43 R. 61 ; Digest, p. 
397, ss. 42, 43. 

15. Damages assessed. They shall assess the damages 
sustained by each owner (1) of the land or other property 
taken for such highway, and insert the same in their return. 
Those of the tenant and remainder-man or reversioner shall 
be assessed separately. — id. s. 15. 

(1) If the estate is insolvent the award should be to the administrator.— 25 R. 458. 

Lessor and lessee are entitled to several damages. The lease is not extinguished, nor 
the claim to rent, by the -laying out. — 15 Pick. 198, 205; 20 do. 159; 23 do. 4^5. In the 
case of tenants in common, as the heirs of a person deceased, the assessment may be 
separate.— 7 Cush. 533. Neither can bar the other.— 11 Pick. 269. 

(a) No one can have any damages unless his land or other property is actually taken; 
nor when the road is laid along the line but not over his land. — 24 R. 139; Digest, p. 
404, s. 189. It would be otherwise if the statute allowed for damage occasioned by the 
laying out.— 3 Cush. Ill, 113. 



LAYING OUT AND DISCONTINUING HIGHWAYS. 219 

(b) A railroad corporation may have damages for the laying out over their track 
though the use of it c mtinues.— 14 Gray, 155. See (d)jjost. 

(c) In determining the amount of damages, it is to be assumed that the road will be 
made in a proper manner, and that the easement will be perpetual.— 34 R. 306; 10 R. 
370, 374; Digest, p. 400, s. 109, p. 404, ss. 190, 191. 

In addition to the value of the land actually taken, it is proper to consider the 
diminished value of what is left, fioni an inconvenient separation of the tract, requir- 
ing an additional outlay for fences, rendering the buildings less commodious, interrupt- 
ing the supplies of water for cattle or irrigation, and the like. — 34 R. 3i3; Digest, p. 
404, s. 192. p. 559, ss. 23, 24: 14 Gray, 214; 20 Pick. 159, 22 do. 39; 6 Mass. 458, 5 do. 437, 
9 do. 388,2 do. 492. 

It is the value of the land at the time of the taking. — 15 Pick. 198. 

Damages are not to be given for the probable injury which the business of a land 
owner may suffer from competition, introduced bv the building of the new road (35 R. 
134; Digest, p. 404, s. 193); nor for anticipated loss of custom (23 Pick. 430, 20 do. 159) ; 
nor for anticipated annoyances from the noise and bustle of the street (6 Gray, 106. 
See also(d), (e)post). If the public use will require the removal of buildings or parts 
thereof that are upon the land, damages are to be awarded accordingly. — 10 R. 374, 38 
R.60; 2 Gray, 267. 

(d) A railroad corporation are entitled as damages upon the laying out of a highway 
across their track, subject to their lawful use of such track, for the expense of erecting 
and maintaining railroad signs and cattle guards at the crossings, and of planking the 
road and keeping it in repair; but not for increased liability to accidents, or the 
expense of ringing bells; nor for its liability to be ordered to build a bridge over the 
highway. — 14 Gray, 155. 

(e) Xo deduction should be made on account of benefits not peculiar to the land- 
owner, but shared in ; by other land-owners in the vicinity. — 12 R. 218; 47 R. 228; 14 R. 
155; 13 Gray, 516, 11 do. 113; 23 Vt. 361. 

The jurv may return that the party has sustained no damage if such is the fact. — 
9 Mass. 388. 

(f) It is the better opinion that a neglect to award damages to a particular land- 
owner does not make the laying out void, even as to him. He may appeal, or, if too 
late for that and he has not waived his claim, petition for a certiorari. — 27 R. 410 ; 46 R. 
66; 26 R. 234; 43 R. 609; 49 Maine, 143; 8 Cush. 360; 7 Gray, 109. 

16. If owner is unknown. If the person to whom the 
damages should be awarded is unknown, a particular 
description of the estate, franchise or property taken shall 
be inserted in their return, with the damages assessed 
therefor, without naming the person to whom awarded. — 
id. s. 16. 

For form, see post, 36 (f), (n). 

17. Damages by whom paid. Damages for land or other 
property taken for a highway shall be paid, if laid out or altered 
for an individual, by him, unless for good cause shown the 
whole or any part thereof shall be awarded (1) to be paid 
by the town ; if for the public, by the town in which that 
part of the highway is for which the land or other property 
is taken ; subject to such apportionment thereof among the 
towns in which the highway is as may be made by the 
county commissioners in case of petitions referred to them. — 
Gen. Sts. p. 143, c. 65, s. 1. 

(1) This qualification is new. Probably it is " good cause." if payment would be 
" burdensome" to him. See ss. 19, 37, post; Digest, p. 405, s. 211. 

18. Costs, by whom paid. The costs of laying out or 
altering a highway in a town shall be paid by the town ; 



220 LAYING OUT AND DISCONTINUING HIGHWAYS. 

and in two or more towns, or over land not in any town, by 
the county. — id. s. 2. 

19. County to pay, when. If the payment of the dam- 
ages and the costs of laying out or altering and making the 
highway would be burdensome to any town, the supreme 
court, on petition, notice to the county commissioners, and 
hearing of all interested, may order a part, not exceeding 
one half the amount thereof, to be paid by the county. — 
id. s. 3. 

For form of petition, see s. 41, post. 

20. No use of land till payment. No land or other 
property taken for a highway shall be appropriated or used 
for making the same until the damages assessed therefor 
are paid or tendered (1), except as provided in the two 
sections following. — id. s. 4. 

(1) But when tendered, a subsequent refusal to pay the money tendered will not 
make the entry unlawful. — 18 R. 73; Digest, p. 409, s. 286. But an action lies for the 
money. — id. See ante, s. 11 (a). 

A land-owner is not entitled to receive the sum awarded, as satisfaction of part 
only of fhe land taken, and the selectmen have no power to assent to his so receiving 
it— 43 R. 609,. 615; Digest, p. 409, s.288. 

21. Excepted cases. If the owner of such land or other 
property is a minor or insane, and has no guardian, or 
resides out of the state, or is unknown, the land or other 
property may be used for making the highway or altera- 
tions, without payment or tender of the damages. — id. 
s. 5. 

22. When agent is appointed. Such land or property 
may be so used, without payment or tender of the damages, 
when, upon proceedings against the town for neglect to 
make the highway or alterations, an agent is appointed to 
superintend the making thereof. — id. s. 6. 

23. Action for land damages. In cases where execu- 
tion may not be issued by the supreme court for damages 
on account of a highway, the person entitled thereto may 
recover the same with interest, by action of debt, if not 
paid in thirty days after demand. — Gen. Sts. p. 144, c. 64, 
s. 7. 

The action is premature if brought before the laying out 
is complete by the return of the selectmen or the accep- 
tance of the report of the county commissioners. — Digest, 
p. 402, ss. 151, 154 ; 52 Maine R. 27. 

24. Indemnity, when ordered. If such damages are 



LAYING OUT AND DISCONTINUING HIGHWAYS. 221 

assessed without naming the person to whom they are 
awarded, such action shall not be maintained, unless at the 
time of the demand therefor reasonable security is tendered 
to the town or person liable, to indemnify them against the 
claim of any other party to said damages. — id. s. 8. 
The security may be in form as follows : 

Know all men, etc., (as in s. 23, p. 80, ante). 

The condition of this obligation is such, that whereas, 
upon the laying out of a highway in said town upon the 
petition of [here insert the name of the first petitioner] and 
others, the sum of dollars was awarded as land dam- 
ages, without naming the persons to whom they were 
awarded, which sum has been demanded of said town by 

the said , as the person entitled thereto, and has 

been paid to him by said town. Now if the said obligors 
shall indemnify said town against the claim of any other 
party, to said damages, then this obligation shall be void ; 
otherwise to remain in full force. 

Signed, sealed and delivered in presence of us, 

, [Seal.] 

, [Seal.] 

. [Seal.] 

25. Action after discontinuance. No action for dam- 
ages in laying out or altering a highway shall be brought 
after it has been discontinued, unless brought within six 
months thereafter ; and only the actual damage shall be re- 
covered. — id. s. 9. 

26. Joint board. The selectmen of two adjoining 
towns (1), acting jointly and by a vote of the major part of 
each board, may lay out any new highway, or alter any 
existing highway within such towns, for the accommoda- 
tion of the public, in the same manner as selectmen are 
authorized to do in their respective towns ; and shall make 
return thereof as required in case of laying out by select- 
men in their town, and cause the same to be recorded by 
the clerk of each of the towns. — Gen. Sts. p. 139, c. 61, 
s. 17. 

(1) This is a cumulative remedv. and an application may still be made t) the court. 
For forms, see ss. 40, ii,post. 

An appeal from such a board will be sent to a joint board when the highway is in 
more than one county.— 47 E. 151. 



222 LAYING OUT AND DISCONTINUING HIGHWAYS. 

27. When such selectmen neglect or refuse, upon peti- 
tion therefor, to lay out or alter, the petitioners shall have 
the same remedy as provided in cases of roads prayed for 
in a single town. — id. s. 18. See (1), s. 26, ante. 

28. Costs. The costs of such laying out or altering shall 
be apportioned between the towns by the selectmen (1) act- 
ing as aforesaid ; and their return shall not take effect until 
such apportionment is made. — id. s. 19. 

(1) The selectmen or commissioners should determine the line between the towns. — 
23 R. 192, 193; 13 Pick. 431. 

29. Discontinuance. Highways in a town may be dis- 
continued by vote of the town ; if they extend beyond the 
limits of the town, they may be discontinued on petition to 
the supreme court, and like proceedings thereon as in lay- 
ing out highways. — Gen. Sts. p. 144, c. 6b, s. 1. 

For forms, see ss. 42, 43, post. 

(a) The straightening of a highway, upon a petition to widen and straighten, has been 
held to be a discontinuance of such parts as are left without the limits of the way as 
straightened.— 9 Allen. 21; 6 do. 17; 9 Grav, 180; 3 do. 406; 7 do. 158; 27 Vt. 728; 17 
Pick. 315; 13 do. 8; 7 Ma.s. 158; 3 Mass. 406. See Digest, p. 407, ss. 242, 243, 244, 260; 
ante, s. 9 (b). 

(b) A town has power to discontinue a road laid out for the accommodation of an in- 
dividual, as in other cases.— 42 R. 352; Digest, p. 407, s. 246. 

(c) A town cannot discontinue a highway, reserving the right to open it, without 
paying damages; the reservation will be void, and the discontinuance absolute. — 10 R. 
133; Digest, 407, s. 245. 

(d) A discontinuance maybe by adopting the report of a committee appointed to con- 
sider the subject.— 13 Gray, 254. 

(e) When consent of the court is unnecessary, a vote to disconthuie takes effect im- 
mediate'!/, notwithstanding an adjournment of the meeting to another day.— 37 Maine, 
52 ; and it seems that the vote cannot be reconsidered at such adjournment, if the rights 
of third persons have intervened. — id. 

(f ) The statute gives no power to lay out or discontinue a public landing. — 6 Allen, 
10, 17 ; 1 Maine, 109. 

30. Court to consent, when. If the highway was not 
laid out by the selectmen, or if laid out by them when a 
petition was pending therefor on account of their neglect 
or refusal to lay out, or if proceedings are pending in the 
supreme court against the town for neglect to make or repair 
it, the highway shall not be discontinued without the con- 
sent of said court. — id. s. 2. 

(1) If the highway exists only by a twenty vears' user, consent is necessary. — 47 R. 
197; Digest, p. 407, s. 247; 30 Maine, 351; 37 do. 67. 

31. Damages for discontinuance. On petitions for the 
discontinuance of highways referred to the county commis- 
sioners, if they report for the discontinuance, they shall 
assess the damages occasioned to any person thereby. — id. 
s. 3. 



LAYING OUT AND DISCONTINUING HIGHWAYS. 223 

32. The damages sustained by any person by the discon- 
tinuance (1) of a highway, by vote of the town, may be 
assessed on petition therefor to the supreme court ; and 
like proceedings may be had thereon, and in the assess- 
ment of such damages by the commissioners, as in the case 
of damages for laying out highways. — id. s. 4. 

33. The form of a petition for a new highway may be : 

(a) To the Selectmen of the toivn of : 

The undersigned respectfully represent that for the ac- 
commodation of the public there is occasion for a new high- 
way in said town, beginning at the school-house in school 
district No. — , and thence in a southerly direction to the 

dwelling-house of , in said town, and they therefore 

request you to lay out a highway of suitable width on the 
route above described. 

(b) Dated at , this — day of , 18 — . 

[Signers.] 

Remarks. — The principal care requisite in drawing the 
petition is in respect to the termini, or in other words the 
points of beginning and ending. These should be definite ; 
and there can be no difficulty in making them definite by 
putting up stakes beforehand, or by beginning and ending 
at, or so many feet in a given direction from, known monu- 
ments. 

It is to be borne in mind that the new highway can have 
its termini or either of them in an existing highway, at any 
convenient distance from the part that is really new. 

A laying out with termini substantially different from those 
in the petition, or so indefinite that they cannot be ascer- 
tained, is ivholly void, and hence the necessity for caution. 
44 R. 67, 388 ; 35 R. 216 ; 43 R. 609 ; 2 Pick. 162. 

A house may be taken for a terminus without stating the 
particular part of it, in the petition, but the laying out 
should be stated definitely, as so many feet in a given 
direction from the middle, or such a corner, of the build- 
ing.— 42 R. 348 ; 44 R. 67 ; 43 R. 609, Digest, p. 397, ss. 
37-40 ; 37 Maine, 548 ; 26 do. 406 ; 23 do. 12. 

The words about and near are superfluous, and in general 
i nopera tive.— 36 R. 404 ; 35 R. 368 ; 42 R. 353 ; 9 Allen, 




224 LAYING OUT AND DISCONTINUING HIGHWAYS. 

Monuments will govern courses and distances. — 36 R. 
404 ; 8 R. 476 ; Digest, p. 402, s. 150. See 14 Maine 
341. 

It is unnecessary to give intermediate bounds, and if given 
they may be disregarded. — Digest, p. 398, s. 73 ; s. 8, ante. 

(1) It is unnecessary to state any particular width in the petition. If 1he width is 
stated the selectmen can lay out narrower. — 23 R. 340. If they lay wider than the peti- 
tion it may be a surprise upon the land-owner, but the town cannot object. — 42 R. 354; 
Digest, p. 402, s. 135. 

34. The order op notice upon a petition for a highway 
may be : 

(a) A hearing upon said petition is hereby appointed at 

, in said , on the — day of next, at — o'clock 

in the noon, and it is ordered that said petitioners give 

notice of said petition and hearing to the first petitioner, 
and to the owners of land over which said highway may 
pass, or the guardian of any owner who may be under 
guardianship or any legal disability, or the person, if any, 
who has the care and possession of the land in case any 
owner is unknown or does not reside in the state, by giving 
to each, or leaving at his abode, an attested (1) copy of said 
petition and this order thereon fourteen days at least before 
the said day of hearing, and to all others interested by 

posting (2) a like copy at , in said town (the usual 

place of town meeting), and leaving alike copy at the abode 
of the town clerk of said town, fourteen days at least before 
the said day of hearing. 

(b) Given under our hands at said , this — day 

of 18—. 

) Selectmen 

> of 



Certificate (3) of posting as ante, p. 95, s. 12 (b). 

(1) The copy may be attested by the person serving it though one of the petitioners. 
—25 R. 225. 

(2) It will not be prudent to omit the posting and service upon the town clerk. See 
avte, p. 97, ss. 2, 3. 

(3) It is not essential, though the better way, that proof of the service come from the 
party who leaves the copy.— 11 R. 293; Digest, p. 401, s. 117. 

35. Notice by publication is in addition to the order in 
the preceding section. It probably is unnecessary when 
any person has the care or possession of the land. 




LAYING OUT AND DISCONTINUING HIGHWAYS. 225 

(a) The form of the affidavit may be : 

I, I) W, one of the petitioners for the highway within 
mentioned, certify that the owner of a portion of the land 
[" that the residence of the owner of land "] over which such 
road may pass is unknown. 

Certificate of oath, as ante, p. 94, s. 11 (c). 

(b) The order for publication may be : 

A hearing upon said petition is appointed at — — , in 

said , on the — day of next, at - — o'clock in 

the noon, and it appearing by the affidavit of one of 

the petitioners for the highway, that the owner of land 
[" that the residence of the owner of land "] over which 
such road may pass is unknown [" is uncertain "] it is 
ordered that said petitioners give notice of said petition and 
hearing, by publishing an attested copy of said petition and 

this order thereon, three weeks successively in the , 

a newspaper printed at , in the county of , 

the last publication to be one week at least before the said 
day of hearing. 

Given, etc., as ante, s. 33 (b). 

There should be an affidavit of the publication which may 
be: 

I certify that an attested copy of the within petition and 

order of notice was duly published in the , printed 

at , in the county of , in the issues of the 2d, 

9th and 16th days of inst. 



Certificate of oath, as ante, p. 94, s. 11 (c). 

36. The laying out. The order of notice having been 
annexed to or following the petition, and the certificate of 
notice the order of notice, the return following the whole 
may be : 

(a) Upon the foregoing petition we appointed a hearing, 
and have given notice thereof as aforesaid, and on the — 

day of , 18 — , at — o'clock in the noon, at , 

in the town of , the time and place appointed. 



(1) [here insert the names of those who appeared 
as parties,] appeared as parties [and said hearing was 

adjourned to the — day of , 18 — , at — o'clock in the 

noon, at , in the town of ] ; and having 

heard all parties interested who attended, and desired to 
be rieard, and all evidence offered by them, and examined 

■ X ' 15 



226 LAYING OUT AND DISCONTINUING HIGHWAYS. 

them and their witnesses under oath, and made a personal 
examination of the several routes proposed, and of the 
highways for which such highway is designed to be a sub- 
stitute, we are of opinion, that for the accommodation of the 
public there is occasion for the same, and we therefore lay 
out a new highway as requested in said petition* described 
as follows : (b) Beginning at a stake thirty feet east from 
the northeast corner of the school-house in school district 
No. — in said town ; thence south five degrees east over the 
existing highway three rods ; thence south through land of 
Peter Harvey forty rods to a stake (c) standing on the 

north side of the river ; thence south over land of 

said Harvey six rods (2); thence south over land of John 
Rogers six rods to a stake standing on the south side of 
said river ; thence south four degrees west over land of 
John Rogers ten rods to a stake ; thence south over land of 
which John Rogers is tenafnt for life and Charles Rogers is 
owner of the reversion (d) forty rods to a stake ; thence 
south over the land and (e) railroad track of the rail- 
road corporation, but subject to the use of said track by said 
railroad as warranted by law, sixty feet to a stake ; thence 
south three degrees east over land (f), the owner of which 
is unknown, twenty rods to a stake ; thence south over land 
belonging to James Peters and Charles Peters, minor heirs 
of John Peters (g), thirty rods to a stake ; thence south over 
land of John Barber ten rods to a stake ; thence south three 
degrees west over the existing highway twenty-five feet to 
a stake in said highway thirty feet west of the south-west 
corner of said Barber's dwelling-house ; the above described 
line to be the middle of the highway, and the highway to 
be sixty feet wide (3). 

(h) And we award damages to the respective owners of 
land over which said highway is laid, to be paid by said 
town as follows : 

(i) To Peter Harvey, forty dollars. 

(k) To John Rogers, fifty dollars. 

(1) To Charles Rogers, fifty dollars. 

(m) To the railroad corporation, sixty dollars. 

(n) To the owner of land before described between the 

— railroad track and land and the Peters' land, the 

owner being unknown, twenty dollars. 

* This may help to identify the road.— 29 Conn. 490. 



LAYING OUT AND DISCONTINUING HIGHWAYS. 227 

(r) To James Peters and Charles Peters, twenty dollars 
each. 

To John Barber no damages are awarded, he having 
waived all right to damages (4). 

(s) Given under our hands at , this — day of 

, 18-. 

) Selectmen 
\ of 



(t) Return to the town clerk within thirty days, to be by 
him recorded and kept on file. See s. 14, and ante, p. 85, 
ss. 42 (c), 44. 

(1) An appearance without objection is a waiver of all defects in the notice.— Digest, 
p. 401, s. 118. And it has been held that if the party does object the want of notice, 
but yet defends on other grounds, it is a waiver. He must, it is said, stand on that 
alone if he would insist upon his objection. — 47 R. 223; 2 Pick. 430. 

(•2) It is to be presumed till the contrary is shown that the owner on each side goes 
halt the distance between the banks at low water. — Digest, p. 119 ss. 22, 26. 

(3) The width must be stated— Digest, p. 397, ss. 51, 52. But if the width and the 
termini are stated, it is not a valid objection, perhaps, that the centre line is not given. 
—4 R. 524; Digest, p. 398, s. 55. 

(4) A land-owner may waive his claim to damages.— 20 R. 318 ; 42 R. 353 ; 15 Pick. 81 ; 
2 Met. 52 J; 52 Maine, 210; 10 Cush. 411; 2 do. 361; 12 do. 574. 

37. Form op proceedings for a private road. 

To the Selectmen of the town of : 

Your petitioner respectfully represents that for his ac- 
commodation there is occasion for a new highway in said 

town, beginning at , and thence southerly to 

[state termini as in s. 33]. 

Wherefore he requests you to lay out such a highway, of 
suitable width, on the route above described. 

Date, etc., as in s. 33 (b). 

Order of notice as in other cases {ante, ss. 34, 35). 

The form of laying out may be as in s. 36, ante, to the 
words we are of opinion, and then add, " that there is occa- 
sion for the same, and we therefore lay out a new highway 

for the accommodation of the said as requested 

in said petition as follows : Beginning, etc., thence south, 
over the existing highway, two rods to a stake (at which 
point is to be a gate) ; thence south four degrees west, 

over land of , forty rods to a stake ; thence 

south, over land of , fifty rods to a stake (at 

which is to be a gate) ; thence south twenty feet to a stake 
standing in the existing highway ; subject to gates across 



228 LAYING OUT AND DISCONTINUING HIGHWAYS. 

said new highway at the places before indicated, to be 

erected and maintained by the said , his heirs 

and assigns. The above described line is to be the middle 
of the highway, and the highway sixty feet wide. 

And we award damages to the respective owners, over 
which said highway is laid as follows : To , one hun- 
dred dollars ; to , one hundred and fifty dollars ; said 

sums to be paid by the said . [Or, one half of said 

sums to be paid by said and the other half by the 

said town of , it having been shown that payment of 

the whole amount by said would be burdensome to 

him. See s. 17 (1), ante.'] 

Given, etc., as in s. 36 (s), ante. 

Return, etc., as in s. 36 (t), ante. 

38. Form of petition to remove gates. 

To the Selectmen of the town of : 



Your petitioners respectfully represent that the gates 
heretofore ordered to be erected and maintained across the 

highway in said town leading from to , and 

which was laid out for the accommodation of , 

subject to gates, have become unnecessary and inexpedient, 
and they therefore request you after notice and hearing to 
cause said gates to be taken away and lay out said road as 
an open highway. 

Date, etc., as in s. 33, ante. 

Order of notice as in laying out a highway (ss. 34, 35, 
ante). 

Final order as in (a), s. 36, ante, to the words toe are of 
opinion, and then add, " that the gates mentioned in said 
petition across said highway have become unnecessary and 
inexpedient, and we therefore order them to be taken away, 
and lay out said road as an open highway, and assess fur- 
ther damages to the land-owners over which said highway 
is laid as follows, to be paid by said town : 

To Chester Howe, twenty dollars ; to Ira Twitchell, 
thirty dollars. 

Given, etc., as in s. 36 (s), ante. 

Return, etc., as in s. 36 (t), ante. 

39. Petition, etc., to widen and straighten. 
To the Selectmen of the town of < : 

Your petitioners respectfully represent that for the ac- 



LAYING OUT AND DISCONTINUING HIGHWAYS. 229 

commodation of the public there is occasion to widen and 
straighten the existing highway in said town, leading from 

southerly to , and they therefore request you to 

widen and straighten said highway. 

Order i etc., as in laying out (ss. 34, 35, ante). 

Final order as in (a), s. 36, ante, to the words we are of 
opinion, and then add, " that for the accommodation of the 
public there is occasion to widen and straighten said high- 
way, and we do therefore widen and straighten the same as 
follows: [Here describe particularly the alterations, giving 
metes and bounds.] 

And we award, etc., etc. 

40. Form op petition to a joint board. 

(a) To the Selectmen of the towns of Bath and Haverhill: 

Your petitioners respectfully represent that for the accommodation of the public 

there is occasion for a new highway in said towns, beginning at the store of 

in said town of Bath, thence easterly to the barn of , in the town of 

Haverhill. 

Wherefore we request you to lay out a highway of suitable width on the route above 
described. 

Dated at , this — day of , 18 — . 

A B , etc. 

(b) Order of notice as in s. 34 ante, but to be posted in both towns and signed as fol- 
lows: 

S M , ) Selectmen 

A W , ) of Bath. 

N W , ) Selectmen 

C S , j of Haverhill. 

(c) Subsequent proceedings as in other cases, but the laying out to be signed by a 
majority of each board and a record to be made in each town. 

(d) The costs of laying out must be apportioned. — Ante, s. 28. This may be done by 
inserting, after the statement of the damages, as follows : And we have apportioned the 
costs of layiug out said road one-third to the town of Bath, and two-thirds to the town 
of Haverhill. Or perhaps a definite sum may be ordered to be paid by one of the towns 
and the residue by the other, although the contrary is held in Vermont. — Digest, p. 
406, s. 237 ; 34 Vt. 288. 

41. Form op petition to court for county aid. 
H ss. To the Supreme Judicial Court. 

The town of respectfully represents that a new 

highway has been laid out in said town leading from 

to , and damages assessed to land-owners amounting to 

the sum of dollars ; the estimated cost of making said 

new highway is dollars ; payment of the damages and 

costs of laying out and making said highway would be bur- 
densome to said town, and therefore said town prays said 
court to order a part, namely, one half the amount thereof, 
to be paid by the county. 

The town of . 

By , Selectmen (1). 

(1) A petition in behalf of a town may be signed by the selectmen, or by an attorney, 
or agent duly authorized.— Digest, p. 407, s. 250. 



230 LAYING OUT AND DISCONTINUING HIGHWAYS. 

42. Form of discontinuance. 

" Toted to discontinue the highway in said town leading 
from the school-house in school district No. 3, in said town, 
southerly to the dwelling-house of John Barber, laid out 
upon the petition of Asa Bigelow and others." 

(a) If the highway is in two or more towns the form of the vote may be : 

" Voted to discontinue the highway leading from the north end of the bridge over the 
Wild Ammonoosuc river at Swift Water, in the town of Bath, to Bungy bridge, so 
called, in the town of Landaff." See 22 R. 576; 34 R. 163, 178; 37 R. 466; Ingest, p. 126, 
s. 20. 

(b) The article in the warrant, the vote, the petition to the court, and the report of 
the commissioners, should describe the road discontinued with reasonable certainty, 
but need not follow the exact description in the laying out. Any description that 
plainly designates the highway intended is sufficient.— 37 R. 57, 515; Digest, p. 407, 
ss. 251, 252; 1 Cush. 476. 

43. Form of petition to the court for consent to a 
discontinuance. 

Respectfully represents the town (1) of , that on 

the day of last, an article in the warrant for 

the town meeting having been duly inserted for that pur- 
pose, said town voted to discontinue the highway in said 

town leading from , in an easterly direction, to 

[state the termini of the road] , and which was laid 

out by the county commissioners (2), upon the petition of 

, and others. Said highway is no longer needed for 

the accommodation of the public (3). 

Wherefore said town requests said court to consent to the 
discontinuance of the same. 

The Town of , 

By their Att'y. 

(1) If the highway is in two or more towns, the towns need not join in the petition for 
a discontinuance.— 37 R. 466; 22 R. 576; 34 R. 163, 168 ; Digest, p. 126, s. 20. The peti- 
tion of course in such case will describe the road as being in both towns. See ante, 
s. 42 (a). 

(2) If the road was laid out by the selectmen of one town only, the petition to the 
court will contain allegations showing that the consent of the court is necessary, as 
that the road was laid out pending an application to the court for the same, or that 
proceedings are pending in the court against the town for a neglect to make or repair 
the road. 

(3) If the road was laid out for the accommodation of the person applying, insert 
after the word "public," the words "or the person applying for the same." 

It is not necessary that the petition state the change of circumstances. But when 
the road has not been constructed the commissioners are required, if they report in favor 
of a discontinuance, to state with reasonable certainty and minuteness what changes 
have occurred, and how they atfect the case, and that the road is discontinued on 
account of such changes.— Digest, p. 408, s. 267. It is no objection that the changes 
have occurred since the petition was referred.— id. s. 275. If the changes are such as in 
law may be deemed sufficient, the commissioners are to determine their importance, 
and the court will not judge over them. — id. s. 266. If in such casa no change has 
occurred j-ince the highway was laid out, substantially affecting the expediency „of 
the laying out, there must be a repori against the discontinuance of the same.— id. 
s. 264. 



LAYING OUT AND DISCONTINUING HIGHWAYS. 231 

The indebtedness of a town, incurred after a highway was laid out and before it wag 
constructed, may be a proper cause for discontinuance ; but though large, it is not nec- 
essarily such a cause.— Digest, p. 408, s. 276. 

The construction and near completion of a railroad are proper to be reported as a 
reason for discontinuing a highway not opened for travel, notwithstanding the commis- 
sioners who laid the road regarded the laying out and construction of the railroad as 
an event certain to happen in a few years.— id. s. 277. 

And so of the extension of a railroad, which, at the time the highway was laid, had 
been granted, and to a certain point finished. — id. s. 278. 

But not the mere pendency and reference of a petition for another highway which 
might be a substitute for the first. — id. s. 279. 

The same change of circumstances that would warrant the discontinuance of a high- 
way in one case, might be entirely insufficient in another, depending on the degree of 
necessity there was for the original laying out of the highway.— id. s. 268. 

44. Petitions for laying out or altering highways may 
be filed in the office of the clerk of the supreme court 
in the following cases : i. when the selectmen have neg- 
lected or refused (1) to lay out or alter the highway ; 
II. when it may pass over land not in any town ; in. when 
it may pass over lands in two or more towns, one of which 
is in the county ; iv. when, having been laid out by the 
selectmen, it is discontinued by the town in two years 
thereafter. — Gen. Sts. p. 141, c. 63, s. 1. 

(1) A neglect to make a return of a laying out will give the court jurisdiction.— 9 Met. 
423, 433; see also Digest, p. 398, ss. 62-64; 12 Met. 208. 

45. Form of petition to court upon neglect or refusal 
of selectmen to lay out a highway. 

H — ss. To the Supreme Judicial Court : 

Your petitioners (1) respectfully represent that for the 
accommodation of the public (2) there is occasion for a new 

highway in the town of , beginning at , and 

thence in a northerly direction to , in said town 

[state the termini of the road as in the petition to the 
selectmen], and that a petition in writing has been pre- 
sented (3) to the selectmen of said town to lay out said 
highway, but they have neglected and refused to lay out the 
same. 

Wherefore your petitioners pray said court to lay out 
said highway. 

A B , &c. 

(1) The petitioners to the selectmen and to the court need not be the same. — Digest, 
p. 398. s. 67. 

(2) If for a private road the form maybe the same, substituting for the words " of the 
public," the words "of" etc., (the person for whose accommodation the road is asked). 

(3) It has been held that such an allegation is so essential that the want of it cannot 
be supplied by amendment, for the reason that the court has no jurisdiction.— Digest, 
p. 213, ss. 41, 42. But when the petition contains such an allegation and is sufficient to 
give the court jurisdiction, objections to the form of the petition, or for the want of a 
proper application to the selectmen, and their neglect or refusal, or the want of a legal 
notice, must be made before the petition is referred.— Digest, p. 399, ss. 81, 82. 



232 LAYING OUT AND DISCONTINUING HIGHWAYS. 

46. Upon appeal from selectmen. Any land-owner or 
other person aggrieved by the decision of the selectmen, in 
laying out or altering a highway, or in the assessment of 
damages in any case relating to a highway, may appeal 
therefrom to the supreme court by petition, within one year 
after the highway or alterations are made ; and on notice 
as provided in section two (1), and such other notice as the 
court may order, the petition may be referred to the com- 
missioners. — Gen. Sts. p. 142, c. 63, s. 10. 

(1) s. 50, post, gee s. 49, post ; 47 K. 151. 

47. Form of an appeal to the court from the assess- 
ment OF DAMAGES IN LAYING OUT A HIGHWAY. 

G ss. To the Supreme Judicial Court : 

Eespectfully represents your petitioner (1), G. M., of 

Bath, in said county, that on the day of last, 

the selectmen of said town, upon a petition to them in writ- 
ing for that purpose, laid out a new highway in said town, 
beginning at , and thence by the courses and distan- 
ces mentioned in said laying out to , passing over 

land of your petitioner [give accurately the points of 
beginning and ending as in the laying out], and (2) 
awarded the sum of dollars to your petitioner as dam- 
ages for his land taken for such highway. Your petitioner 
is aggrieved by the decision of said selectmen in such 
assessment of damages, and prays that his just damages for 
said land may be awarded him. 

G M , 

By his Att'y, A. P. C. 

(1) The petition should not be joint, but several, by each owner aggrieved.— 25 
Maine, 333; see 26 Vt. 670; Digest, p. 405 (b). 

(2) If no damages were awarded to him the petitioner should so allege and pray for 
an award, as above. 

(a) An appeal from the laying out may be in the same form to the word " aggrieved," 
and then say, " by the decision of said selectmen in laying out of such highway, and 
prays that it may be reversed. "--id. 

48. A PETITION FOR DAMAGES UPON A DISCONTINUANCE (1) 

should show that the petitioner has sustained special dam- 
age.— 11 Cush. 388. 

(1) The form of the petition may be as follows: 

G ss. To the Supreme Judicial Court. 

A B , of , in said county, respectfully represents that on the — day of 

, 18 — , he was and now is, the owner of a dwelling-house and farm and — acres o 

land lying — rods easterly of the highway leading from , in said town of 

to , bounded and described as follows : [Here insert a description of the premise 

sufficient to show that they were particularly affected by the discontinuance.] 



LAYING OUT AND DISCONTINUING HIGHWAYS. 233 

Said premises, until the vote of discontinuance hereinafter mentioned, were connected 
■with said highway by a highway laid out for the accommodation of your petitioner, 

leading from — to his sai 1 dwelling-house, and he had and has no other outlet to 

any public road; bat on said — d-iy of , said last mentioned highway was discon- 
tinued by a vote of said town. Your petitioner has sustained damage by such discon- 
tinuance' in the following particulars : [State them.] 

Wherefore your petitioner prays that his said damages may be assessed, and execu- 
tion therefor issued against said town. 

A B . 

If the road was laid out for the accommodation of the public, to entitle one to dam- 
ages it must appear that the discontinuance was specially injurious to him; as where 
he had made erections upon the faith of the laying out, which become useless to him by 
reason of the discontinuance.— 44 R. 67, 68, 248; 2 Met. 558, 560; 7 Cush. 254; 7 Gray, 
271; 3 Allen, 575; 11 do. 26. 

49. Appeal and security in sixty days. If a land-owner 
or other person interested appeals from the decision of the 
selectmen laying out or altering a highway, he shall file 
his petition, if he had actual notice of the laying out or 
altering, within sixty days after the return thereof is re- 
corded, and with it a bond (1), in the sum of two hundred 
dollars, with sufficient sureties, conditioned to pay to the 
petitioners for the highway or alteration, the costs which 
may be awarded them in case the decision of the selectmen 
is affirmed. — id. s. 11. The bond should be to the petition- 
ers as obligees. 

(1) The form of the bond may be : 

Know all men, etc., as in s. 23, p. 80, ante. 

The condition of this obligation is such that whereas the said has appealed 

from the decision of the selectmen of the town of , in laying out [or " altering "] 

a highway in said town upon the petition of A B and others, now if said shall 

pay to said petitioners the costs that may be awarded them in case the decision of said 
selectmen is affirmed, then this obligation to be void ; otherwise to remain in full force. 

Signed, sealed and witnessed as in s. 23, p. 80. 

50. Order op notice. When such petition is filed, the 
clerk shall issue an order of notice, with a copy of the 
petition, returnable to the next term of the court, and the 
petitioners shall cause a certified copy of the same to be 
given to or left at the places of abode of one of the select- 
men and the town clerk of each town through which such 
road may pass, twenty-eight days before the next term of 
said court. — Gen. Sts. p. 141, c. 63, s. 2. 

51. Highway not in any town. If such proposed high- 
way may pass over lands not in any town, the court shall 
order notice to be given to the owner thereof, if known 
and residing in the state, by giving to him or leaving at his 
abode a like copy ; and if he or his residence is not known 
or is uncertain, or if his residence is not in the state, by 
publication. — id. p. 142, s. 3. 

52. Reference. If no sufficient objection (1) is made, 



234 LAYING OUT AND DISCONTINUING HIGHWAYS. 

all petitions relating to roads shall be referred to the county 
commissioners, except where the proposed highway may 
pass over lands in two or more counties.— id. s. 4. 

(1) The most frequent objection is, that there has been a prior decision upon a sim- 
ilar petition and no change of circumstances; such objection if sustained by the facts 
will usually and perhaps always prevent a reference. — Digest, p. 399, ss. 85, 87, 88, p. 
408 (b). 

What objections must be taken before the reference — 
see ante, s. 45 (3). 

53. To a joint board. In such cases the petition shall 
be referred to the commissioners for all such counties, and 
they shall constitute a joint board ; a copy of such petition 
and of the order of reference shall be furnished to the com- 
missioners of each county, and they shall make a joint (1) 
report to the court. — id. s. 5. 

(1) The report need not be signed by a majority of the commissioners of each county, 
but only by a majority of the joint board. — 35 R. 292; Digest, p. 407, s. 256. 

54. If any commissioner is interested (1) in any such 
petition he shall not serve, but the vacancy shall be filled, 
upon petition of a commissioner, by any judge of the su- 
preme court. — id. s. 6. 

(1) The interest must be direct, as when a commissioner resides in the town through 
which the road is to pass, or owns property to be directly affected by the proceedings, 
or perhaps if he is nearly related to one of the petitioners. A remote advantage or 
disadvantage is not sufficient. — Digest, p. 211, ss. 3, 4, 5, p. 400, ss. 91-93. 

Objections of this character should be made the first legal opportunity or they will 
be considered waived.— Digest, p. 400, ss. 94-96, p. 638, s. 5. 

55. Report and acceptance, etc. Any report of the 
commissioners may, for good cause, be recommitted, or the 
same may be accepted and judgment rendered thereon, 
establishing the highway, the alterations, or other matter 
reported upon. — id. s. 7. 

(a) If damages are awarded to one as land-owner, who is not entitled to damages, a 
release by him to the town removes the exception.— 38 R. 106. 

56. Evidence before commissioners. — In hearings rela- 
tive to highways, the commissioners may admit or reject 
any evidence offered ; and no report made by them shall 
be set aside or recommitted by the court because of such 
admission or rejection. — id. s. 8. 

57. Unfinished business. The commissioners in office, 
when a petition is referred to them, shall continue to act 
as such in regard to the petition until all the business 
thereof is completed, unless the court otherwise order. — id. 
s. 9. 



LAYING OUT AND DISCONTINUING HIGHWAYS. 235 

58. Appeal cases, authority of commissioners. The 
commissioners to whom may be referred the petition of 
any appellant (1) from the decision of selectmen shall con- 
sider and report upon the matters in regard to which the 
appeal is taken, as set forth in the petition ; and the decis- 
ion of the selectmen may be affirmed, modified or reversed 
by the court, according to the report of the commissioners, 
—id. s. 12. 

(1) Appeal when, allowed, and forms, ss. 46-50, ante. Whether an appeal vacates 
the order, see Digest, p. 38, I; 28 Vt. R. 286, 290; 6 Mass. 7. 

59. Jury to assess damages, when. If in the case of 
any petition relating to highways referred to the commis- 
sioners the person to whom damages are awarded is dis- 
satisfied with the same, he may appear at the court, when 
their report is returned, and object thereto in writing, and 
the court shall assess his damages by a jury. If he recover 
a greater sum he shall be allowed his costs ; otherwise he 
shall pay costs. — id. p. 143, s. 13. 

60. Execution. Executions may be issued for damages 
and costs awarded, in all cases, on petitions relating to 
highways, as upon judgments. — id. s. 14. 

61. Errors corrected. Any mistake in a name, sum, 
number, monument or the like, in the report of the com- 
missioners, may be corrected by the court, or by the com- 
missioners by leave of court, without recommitment of the 
report. — id. s. 15. 

62. Notice of hearing before commissioners. The 
chairman of the county commissioners shall appoint a time 
and place of hearing on every petition referred to them, of 
which he shall give notice to the selectmen of each town 
interested therein and to the land-owners, as required of 
selectmen in laying out highways. — Gen. Sts. p. 139, c. 62, 
s. 1. 

(a) Persons entitled to notice, see ss. 3 (a) (b), 4, ante. 

The notice should state the time and place of hearing, describing the petition with 
sufficient certainty by the name of the first petitioner, or otherwise.— Digest, p. 401, 
8. 112. 

A notice to the selectmen and town clerk, as such, is a notice to the town. — id. 
8. 113. 

A notice signed by the chairman is sufficient; and it has been held that, having 
made one notice and signed it, he may direct one of the petitioners to make out simi- 
lar notices, and sign in his behalf, and serve them. — id. ss. 112-115. 

Fourteen days' notice to towns and corporations is sufficient.— id. s. 116. 

(c) Proof of notice as in ante. p. 224, s. 34 (3). 

(d) Waiver of notice, see s. 3G (1), p. 227, ante. 

63. Appointment of substitute. If any one of the com- 



286 LAYING OUT AND DISCONTINUING HIGHWAYS. 

missioners is unable to attend at said time and place, the 
commissioners present may, by writing under their hands, 
appoint (1) a person who has served in said office to act in 
his stead. — id. s. 2, 

(1) The form of appointment niay be: 
To of the town of : 

Whereas , one of the county commissioners, is unable to attend at the 

time and place appointed by said commissioners, for a hearing this day upon the peti- 
tion of and others for a highway, we hereby appoint you to act in his 

stead. 

Witness our hands this day of , 18—. 

, ) County 

, y Commissioners. 

It may not be pmdent to appoint in anticipation, notwithstanding the dicta of the 
court in Digest, p. 400, s. 101. By Gen. Sts. c. 93, s. 8, when a vacancy occurs in the 
office it must be filled by the court. See also 22 R. 144; Digest, p. 400, ss. 98, 99. 

64. To be sworn. The person so appointed shall be 
sworn to act faithfully and impartially in the proceedings 
upon the petition, and shall have the powers and perform 
the duties of a county commissioner in relation thereto. — 
id. s. 3. 

(1) Objections to a commissioner must be made at the time, if known.— Digest, p. 
400, ss. 95, 96, 101. 

65. Return of appointment. The certificate of his ap- 
pointment and oath shall be returned to the court with the 
report of the commissioners, and filed therewith. — id. p. 
140, s. 4. 

66. Examination of route. Said commissioners shall 
make examination of the routes, and hear parties interest- 
ed (1), and shall have like powers as selectmen in such 
case, and shall make report upon the subject of the petition 
to the court in which it is pending. — id. s. 5. 

(1) This may be either before or after the hearing, the parties having an opportunity 
to be present, and all ex parte conversations being avoided.— Digest, p. 401, s. 129, p. 
404. ss. 178-881. 

67. Report, what to contain. In their report, they shall 
certify the names of the several owners of land and other 
property taken for the highway, and to whom and in what 
manner notice was given of the hearing. — id. s. 6. 

68. They shall insert in their report a particular de- 
scription of the new highway laid out, and its width, or of 
the alterations made in an existing highway, and their esti- 
mate of the expense of making the same in each town sepa- 
rately. — id. s. 7. 

69. Land damages. They shall assess the damages sus- 
tained by the owners of land or other property, as required 



LAYING OUT AND DISCONTINUING HIGHWAYS. 237 

of selectmen, and insert the same in their report, stating the 
damages in each town separately ; and shall certify to the 
clerk of each town the damages to the owners therein, four- 
teen days before the court to which their report may be re- 
turned. — id. s. 8. 

70. Grade. They may (1) prescribe in their report the 
grade, or rise and fall to the rod, of any part of the high- 
way laid out, or of any existing highway for which the pro- 
posed highway, if laid out, would be a substitute ; and such 
highway shall be made in conformity therewith. — id. s. 9. 

(1) They cannot direct of what materials or in what manner the road shall be con- 
structed.— 31 Vt. 153. 

71. Contributions by other towns. When a petition 
for laying out a highway is referred to the commissioners, 
any town in which the highway may be may present their 
petition (1) to the commissioners, setting forth that the 
expense of the proposed highway would be excessively 
burdensome to them, and that another town named, situate 
in the vicinity, would be greatly benefited thereby, and 
praying that a part of said expense may be borne by such 
other town. — id. s. 10. 

(1) The form of such petition may be : 
To the County Commissioners of the county of : 

The town of respectfully represents that the expense of the highway prayed 

for in the petition of and others, to be laid out in said town, and which has 

been referred to said commissioners, would be excessively burdensome to the said 
town of , and the town of , situate in the vicinity, would be greatly bene- 
fited by said highway ; wherefore said town prays that a part of said expense, namely, 
one-half, may be borne by the said town of . 

Date, etc. 

72. Notice of application. The commissioners shall 
give to such other town notice of the time and place of hear- 
ing upon the original (1) petition, and of the substance of 
such petition relative to the expense, fourteen days before 
said hearing, and shall hear such other town, if they appear, 
upon the question of laying out the highway, and o£ their 
contributing to the expense. — id. s. 11. 

(1) This is a change from the former statute.— 29 R. 369. 

The form of the notice may be : 
To the Town of in the county of : 

You are hereby notified that a hearing upon the petition of and others, 

for a new highway in the town of , has been appointed at , in said town, 

on the —day of next, at o'clock in the noon, and that a petition has 

been presented to us by said town for an order upon you to contribute to the expense 
of said high way, a copy of which petition is hereto annexed. 

Date and official signature. 



238 LAYING OUT AND DISCONTINUING HIGHWAYS. 

73. Order for a contribution. If after such hearing the 
commissioners decide to lay out the highway, they may in 
their report assign (1) such reasonable part of the damages 
assessed, and of the expense of laying out and making the 
highway, as they think just to be paid by such other towm 
In case the substantial part of the expense of making the 
highway is the erection of a bridge, such other town shall 
at all times contribute its proportion toward the repair and 
maintenance of such road ; and the commissioners, in such 
case, in their report laying out the same, shall determine 
the relative proportion to be borne by such other town to- 
ward the repair and maintenance of such road, until the 
court upon proper proceedings shall change the same. — id. 
s. 12. 

(1) This it is held may be by ordering one of the towns to pay a definite sum. — 
Digest, p. 406, s. 237. A separate report upon the subject, if returned at the same 
time with the report laying out the road, may be considered a part of it and will be a 
compliance with the statute. — Digest, p. 406, ss. 238, 239. 

74. To be heard. Such other town may appear and 
be heard as a party upon the acceptance of the report ; and 
by its acceptance said town shall be made liable to pay the 
portion of damages and expense so assigned. — id. s. 13. 

75. Damages, etc., apportioned. Upon motion of any 
town interested in a petition for a highway referred to the 
commissioners, they may apportion the damages assessed 
and the expense of laying out and making the highway 
among the several towns in which it may be, in such sums 
or shares to each as they may think just ; and upon the ac- 
ceptance of the report the same shall be paid accordingly, 
—id. s. 14. 

76. When a river is the boundary. When a highway 
is laid out across a stream or body of water constituting the 
boundary between two towns, the commissioners shall de- 
termine the line (1) across the highway to which each town 
shall construct it, and describe the same in some definite 
maimer, so that said line may be readily ascertained ; and 
upon the acceptance of their report laying out the highway, 
the said line shall be the true boundary between said towns 
at that place, for all purposes relating to said highway. — 
id. s. 15. 

(1) See ante, s. 36 (2). 

77. The fees to be paid to the commissioners for their 



LAYING OUT AND DISCONTINUING HIGHWAYS. 239 

services on petitions relating to highways are ten cents per 
mile for travel each way, and two dollars per day for the 
time necessarily occupied in making examinations and re- 
ports ; and if more than one road is examined in any town 
at the same time but one travel shall be allowed. — id. s. 16. 

(a) Petitioners for roads cannot be taxed as witnesses.— 22 R. 499. 

78. Easement only. The right taken by the public is to 
build and maintain the road and use it as a highway. The 
owner of the land retains the right to use the land for any 
purpose not inconsistent with the public use, and may main- 
tain an action against any one who enters upon the land 
except for the lawful purposes of a highway, or builds over 
it, the same as if no highway had been laid out. Gravel, 
sod, rocks and other materials composing part of the land 
laid out for the road, may be used in its construction or for 
repairs, but not wood and timber growing upon the land 
any more than buildings or fences which can only be removed 
if in the way. — Digest, p. 414, p. 559, s. 11 ; 5 Allen, 308 ; 
22 Pick. 263 ; 6 Mass. 454 ; 1 Pick. 122 ; 6 do. 27 ; 16 
Mass. 33 ; 7 Gray, 21 ; see 21 Pick. 292 ; 17 do. 357. 



240 



MAKING AND REPAIRING HIGHWAYS. 



CHAPTEK XLII. 



MAKING AND REPAIRING HIGHWAYS. 



Acceptance of road, s. 1 (b). 
Adjoining land, entry upon, s. 22 (1). 
Agents for building roads, s. 1 (b). 

To expend lines, ss. 35, 36. 

Towns not liable for, when, s. 21 (b). 
Altering grade and ditching, s. 22 (1)(a). 

Appeal from assessment of damages, 
8.23. 

Application to the selectmen, s. 22 (a). 
Arrest for non-payment of tax, s. 11 (1). 
Contract to repair roads, s. 27. 
Contribution by other towns, s. 4. 
County to pay or repair, ss. 2, 3, s. 2 (a) 

(b). 
Culverts in highways, s. 21 (e). 
Distress for tax, s. 11. 
Ditching, damages for, s. 22. 
Fines for neglect to repair, ss. 30, 32, 34, 
36. 

Execution for, s. 34. 

Pees of witnesses, s. 33. 
Gravel, etc., removal of, s. 19. 

Lot for set off, ss. 20, 20 (a) (b). 
Highways, what are. s. 41. 

Town liable if defective, ss. 37, 38. 

Void and voidable, s. 41 (1). 

Waiver of objections to, s. 41 (1). 
Highway districts, limits of, s. 8. 

For one year only, s. 8 (b). 

Form of division, s. 8 (a). 

What territory to include, s. 8 (e). 
Highway tax, ss. l, 24, 25. 

If illegal, effect, s. 8 (c). 

May be money tax, ss. 24, 25. 

Summer and winter tax, s. 1 (a). 
Necessity, way by, s. 45. 
Notice to work out tax, ss. 9, 10, 40. 



Other districts, taxes for or from, ss. 

15, 16. 
Other towns to contribute, s. 4. 
Part performance, s. 1 (b). 
Plank, etc., purchase of, ss. 18, 18 (a) (b). 
Private way, ss. 14, 42. 

What is, s. 14(a). 
Prices for labor, ss. 12, 13. 
Strangers not to repair, s. 21 (c). 
Selectmen to repair, s. 17. 
Selectmen de facto, s. 5 (a). 
Sewers in highways, s. 21 (d). 
Sidewalks, s. 43. 
Sprinkling streets, s. 21 (d). 
Surface water, s. 22 (l). 
Surveyors, choice of, etc., ss. 5, 6. 

At illegal meeting, s. 5 (a). 

Commencement of term, s. 7. 

Must be sworn, s. 7 (a). 

Town not liable for, when, s. 21 (b). 
Surveyor's duties, etc., ss. 9-29. 

Common law liability, s. 21 (a). 

By statute, s. 38. 

Liability of, when at an end, s. 38 (1). 

Remedy over by surveyor, s. 8 (d). 

To settle at end of the year, s. 26. 
Surveyor's warrant, s. 8. 

Form of, s. 40. 

Not returnable process, s. 8 (e). 
Towns liability of, by statute, ss. 22, 29-37. 

At common law, s. 21 (a). 

For acts of surveyor, s. 21 (b). 
Turnpike roads, s. 44. 
Uncovered ditch, s. 21. 
Way by necessity, s. 45. 
Willful injury to highways, ss. 28, 29. 



1. Towns to raise money. Towns shall annually raise 
such sum as they judge necessary for the year, to be assessed 
and collected as state taxes, for making and repairing high- 
ways and bridges therein, and in other towns according to 
any order of the supreme court. — Gen. Sts. p. 145, c 66, s. 



(a) Towns may legally vote to raise a part of their highway taxes to be expended in 
summer, and a part in winter.— 21 P. 425, 432. 

But in the absence of such a vote, the selectmen can not control the discretion of 
the surveyor as to the time or season.— id. Digest, p. 409, ss. 296, 297. 

(b) Selectmen have power to appoint agents to build a road— 24 P. 208; Digest, p. 
410, s. 304; and perhaps they may accept the road as having been made according to 
theconiract; but a highway surveyor cannot. See 5 Allen, 120; 22 Maine, R. 133. The 
contractor may recover for a part performance if beneficial to the town. — Digest, p. 
57, SB. 163, 164; 5 Allen, 120; 13 Met. 42; 7 Maine, 76. 

2. County to pay when. The supreme court, on peti- 
tion and notice to the county commissioners, may order 
any part of the expense of repairing a highway to be paid 



MAKING AND REPAIRING HIGHWAYS. 241 

by the county, when the whole would be burdensome to the 
town, or when the county convention has recommended 
such order. — id. s. 2. 

(a) If the highway has been put in repair, the form of the petition may be: 
G ss. To the Supreme Judicial Court. 

The town, of , in said county, respectfully represents that the highway in 

said town leading from to , has been put in repair by said town at an ex- 
pense of dollars within the last days, and that the whole expense of such re- 
pairs would be burdensome to said town. 

Wherefore said town prays that a part of said expense, to wit, [one-half] may be 
paid by the said county. 

The town of . 

By . 

See ante, p. 229, s. 41 (1). 

(b) If the anticipated expense would be burdensome, and the case admits of delay, 
the form may be : 

G ss. To the Supreme Judicial Court. 

The town of , in said county, respectfully represents that the whole expense of 

keeping in repair the highway in said town, leading from to , would be 

burdensome to said town ; wherefore said town prays that a part of said expense, to 
wit, [one-half] may be paid by said county to said town, or that said highway may be 
put in repair by said county. 

The town of . 

By . 

3. Paying or repairing. The court may order such part 
of the expense to be paid to the town, or cause the highway 
to be put in repair in such manner as they think proper, 
and draw their order for such part upon the county treas- 
urer. — id. s. 3. 

4. Other towns. When the expense of rebuilding or 
repairing a highway would be excessively burdensome to 
the town in which it is situate, and another town is greatly 
benefited by such highway, the commissioners, on petition 
(1) to the supreme court and proceedings thereon as in 
the case of laying out a highway, may order a portion of 
the expense to be paid by such other town. — id. s. 4. 

(1) The form of the petition may be : 

G- ss. To the Supreme Judicial Coxirt. 

The town of , in said county, respectfully represents that the highway in said 

town leading from to , has been put in repair [and a bridge in the same 

rebuilt] by said town at an expense of dollars within the last months. 

The whole expense of such repairing [and rebuilding] would be excessively burden- 
some to the said town of , and the town of , in said county, is greatly ben- 
efited by said highway; wherefore the town of prays that a part of such ex- 
pense, namely, [one-half] may be ordered to be paid by the said town of . 

The town of . 

By ■ 

5. Surveyors, choice of. Towns may choose as many 
surveyors of highways as they think proper. 

(a) The surveyor has no authority unless chosen at a legal meeting. — 7K..206; Di- 
gest, p. 500, s. 4G; 34 Maine, 575. But a meeting maybe called by those who are acting 
selectmen.— Digest, p. 499, ss. 29-39. 

16 



242 MAKING AND REPAIRING HIGHWAYS. 

6. Appointment. If none are so chosen, the selectmen 
shall appoint surveyors. — id.; ante, p. 90, s. 12. 

7. Surveyors enter upon their duties on the fifteenth 
day of May. 

(a) They must be sworn or they will be trespassers.— Digest, p. 500, s. 46. See ante, 
pp. 77, 79, ss. 7, 17. The record is not the only evidence of their being sworn.— 5 Vt., 
409. 

8. Warrant, etc. On or before the fifteenth day of May 
annually, the selectmen shall limit (1) the several survey- 
ors' districts, and give to each surveyor a list of the persons 
in his district, with the highway tax against each, and a 
warrant to collect the same. — id. s. 6. See s. 40. 

(a) A division may be in this form : 

HIGHWAY DISTRICTS FOE 18—. 

The limits of the districts of the several surveyors of highways in the town of , 

for thQ year 18 — , shall be as follows : 

District No. 1 (A B , surveyor,) shall embrace all the highways and bridges 

between the dwelling-house of , in said town, and the school-house in school 

district No. — . District No. 2 (C D , surveyor,) shall include all, etc., etc. 

Witness our hands, this — day of , 18—. 

Selectmen 
of 



Recordings, as ante, p. 85, s. 42 (c). 

(b) Highway districts are for one year only. 

(c) It is not necessary that the division embrace the whole territory of the town. — 21 
R. 431. 

(c) If a highway surveyor sell property to satisfy a tax not legally voted, he will be 
liable in damages to the extent of the value of the property so sold, although the party 
was liable to be taxed for the object for which the tax was assessed. — Digest, p. 240, 
s. 67. 

(d) It has been held that if a highway surveyor is compelled to pay damages for 
entering upon what turns out not to be a legal highway, but which was assigned'to 
him as one, he may recover from the town upon an implied promise of indemnity. — 
34 Vt. 426. See Digest, p. 607, ss. 23-25. 

(e) The warrant is not returnable process, and the doings of the highway surveyor 
cannot be proved by his return upon it.— 2 R. 390; 43 R. 211 ; contra, 13 Met. 85, 94. 

9. Notice to work tax. Every surveyor shall give to each 
person named in his list, or leave at his abode, a notice of 
the amount of his tax, and of the time when, the place 
where (1), and the tools with which he shall attend to 
work out the tax, four days before the day appointed, and 
may require any person to work out not more than one half 
his tax in labor of animals. — Gen. Sts. p. 146, c. 66, s. 7 ; 
s. 41, post. 

(1) This place need not be upon a highway.— 36 R. 304. If the surveyor sell without 
the notice required by this section he will be a trespasser. — 15 Maine, 247. 

10. Sudden emergency. In cases of sudden emergency, 
requiring immediate remedy, the surveyor may give such 
notice to attend forthwith. — id. s. 8. 



MAKING AND REPAIRING HIGHWAYS. 243 

11. Distress. If any person so notified does not attend in 
person, or by one or more suitable laborers, the surveyor 
shall levy his tax by distress (1), as collectors may levy the 
state tax, unless within four days after the time so 
appointed he renders to the surveyor a sufficient excuse for 
his neglect ; in which case he shall be notified to work at 
some other time. — id. s. 9. See s. 40. 

(1) It is not quite clear that a highway surveyor can take the body, for the word 
"distress," in its ordinary legal meaning, applies only to goods and chattels.— Bou- 
vier's Law Die. vol. 1, p. 432. The statute has been the same in this particular since 
1786, and the form of warrant in Richardson's Town Officer gives no directions to take the 
body. But in 5 Gray, 532, the court speaks of an arrest " on a warrant of distress," 
etc., and see Bell's Town Officer. See 540, post; ante, pp. 189-193. 

12. Prices for labor, etc. The town may determine 
the prices to be allowed for labor, materials, and use of 
tools applied in working out the taxes ; if not so deter- 
mined they shall be fixed by the selectmen, and notice 
thereof given to the surveyors. — id. s. 10. 

13. Travel. The surveyor shall allow to each person 
attending to work out his tax the time necessary for his 
travel from and to his home and the place where the work 
is done. — id. s. 11. 

14. Private way. The selectmen may permit any per- 
son not residing upon a highway to work out his tax or any 
part thereof upon any way leading from his dwelling to the 
highway. — id. s. 12. 

(a) This statute applies to a lane, path, or way of any description from the house to 
the road, whether it has been laid out or not. — 47 R. 273, 276. 

15. Other districts. When the whole tax in a survey- 
or's list, in the opinion of the selectmen, is not needed in 
his district, they may order him to cause the whole or any 
part thereof unpaid to be worked out in another district.— 
id. s. 13. 

16. When the taxes unpaid in any surveyor's list, from 
unforeseen accident, are insufficient for his district, the 
selectmen may order any other surveyor to cause the 
unpaid taxes or any part thereof in his list to be worked 
out in that district. — id. s. 14. 

17. Selectmen to repair. If the highway taxes in any 
town are insufficient for the suitable repair of highways and 
bridges therein, the selectmen may cause them to be put in 
repair (1) at the expense of the town. — id. s. 15. 

(1) But not until the money raised by the town has been expended.— 16 R. 53: 
46 K. 414. 



.•' 



244 MAKING AND REPAIRING HIGHWAYS. 

18. Purchase of timber, etc. Highway surveyors may 
purchase timber, plank, and other materials necessary for 
the repair of highways and bridges in their districts, at the 
expense of the town. — id. s. 16. 

(a) If they disclose their agency and purchase as highway surveyors, the claim of the 
seller will be upon the town only.— 15 K. 371 ; Digest, p. 25, ss. 127, 128. They may, if 
thev choose, pay for the materials and recover the price of the town. — 24 li. 314; Digest, 
p. 410, s, 308. 

They are the judges whether the repairs upon the bridge are necessary. — Digest, 
p. 410, ss. 306, 307. 

They may cause lumber purchased by them to be surveyed at the expense of the 
town, and are not limited, nor can the selectmen limit them, to sworn surveyors. — 
Digest, p. 410, ss. 305, 306. They cannot charge for their own services in drawing the 
materials or putting them into the bridges. — Digest, p. 410, s. 309; nor for money 
expended in repairs over and above the taxes upon their list, unless done under the 
authority of the selectmen; and it will not alter the case, that the repairs were neces- 
sary and the taxes upon their list had all been worked out.— Digest, p. 410, s. 309; 
51 Maine, 359; 32 do. 46; 30 do. 157; 13 do. 293; 13 Pick. 343; 4 do. 149. 

ib) In a suit against the town for lumber purchased by a highway surveyor, it will 
be sufficient to prove that the selectmen have given him a warrant as highway sur- 
veyor, and that he has acted under it. —Dow vs. Earning, 48 R. 

19. Removing gravel and rocks. They may remove 
gravel, rocks or other material from one part of a highway 
in their respective districts, doing no damage to the adjoin- 
ing land, to any other part of the same or any other high- 
way therein, for the purpose of grading or otherwise repair- 
ing the same. — id. s. 17. 

20. Lot for gravel. When there shall be occasion for 
soil, gravel or hard pan to repair the highways in any 
town, and the same cannot be obtained by agreement with 
the owner thereof, a lot not exceeding half an acre, with 
the soil, gravel, or hard pan thereon, may be taken by the 
selectmen, upon petition for that purpose, for the use of the 
town, in the same way and manner and with the same right 
of appeal to the land-owner as in the case of land taken for 
a highway. — id. s. 18. 

(a) The form of the application may be as follows : 

To the Selectmen of the town of : 

The undersigned, highway surveyers of said town, respectfully represent that there 
is occasion for soil, and gravel [and hard pan], to repair the highways in said town, 
and that a lot of land described as follows, [here insert the description}, and owned by 

, of said town, is suitable and necessary for that purpose, but the fame cannot be 

obtained by agreement with the owner thereof. 

Wherefore your petitioners pray that said lot, with the soil, gravel and hard pan 
thereon, may be taken for the use of said town. 

Dated at said , this of , 18—. 



(b) The proceedings subsequent to the petition may be as in laying out highways.— 

ante, p. 220. ss. 33-37. The selectmen will return "we find that there 

is occasion for soil, and gravel, ["and hard pan," if suchis the fact], to repair the high- 
ways in said town, and that the lot described in said petition is suitable and necessary 
for that purpose, and that the same cannot be obtained by agreement with the owner 



MAKING AND REPAIRING HIGHWAYS. 245 

thereof; and we therefore take said lot, bounded and described as follows: [set it 
out b/ metes and bounds] with the soil, gravel and hard pan thereon, for the use of 

said town, and award dollars, as damages for the same, to , the owner 

thereof. 
Given under our hands, etc., etc. 

21. Uncovered ditch. In repairing highways, no 
uncovered trench or ditch shall be made by the side of the 
traveled part thereof next and opposite to a dwelling-house, 
yard, or private way leading into any field, land, or enclo- 
sure on said highway ; nor shall said highway be repaired 
in any other manner to obstruct the passage to such house, 
yard, or private way (1). — id. s. 19. 

(a) If a surveyor violates this section, or commits any malicious or wanton and 
unlawful act, he is liable as at common law. notwithstanding the remedv in cei tain 
cases against the town.— 43 R. 212; 34 R. 313; Digest, p. 16, ss. 127, 128; 46 Maine, 127; 
43 do. 322; 32 do. 325; 1 Pick. 418. 

Ob) Except when made liable by statute, the town is not liable for the wrongful acts of 
a highway surveyor.— 51 Maine, 359; 41 do. 363; 38 Vt. 350. See 46 Maine, 127 ; 19 Pick. 
511 ; 3 Hill, 612; ante, p. 9, s. 5 (h). 

(c) A third person not acting under the lawful authority of the surveyor, selectmen, 
or town, cannot repair a highway except so far as may be necessary to enable him to 
pass at the time, and if he attempt to do so he will be liable as a trespasser to the 
adjoining owner.— 38 Maine, 195. 

(d) The owner of the soil cannot object to the putting in of a reservoir for water to 
sprinkle the streets by the proper authorities— 32 Vt. 367; nor to the putting in of 
sewers. — 28 Vt. 363. 

(e) If the owner of land, over which a highway is laid out, have on the land a natu- 
ral or an artificial water-course, to convey water to his house, the road ought to be 
constructed with a culvert, for the water,' unless the difficulty and expense would 
exceed the damage caused by stopping the water-course.— 36 R. 388 ; Digest, p. 409, 
ss. 289, 290 ; 6 Mass. 454 ; 21 Pick. 344. 

And where such water-course is obstructed by neglect of the town to keep the culvert 
in repair, the owner, after due notice to the surveyor of the district, may himself open 
the culvert, doing no unnecessary injury to the road.— id. The town in a similar case 
was held liable to an action of case for its neglect. — 38 Vt. 350; but see 13 Gray, 601, 
contra, and ante, p. 10, s. 5 (c). 

22. Damages assessed. If in repairing a highway by 
authority of the town the grade (1) is raised or lowered, or 
a ditch made at the side thereof, whereby damage is occa- 
sioned to any estate adjoining, the selectmen, on applica- 
tion in writing of the owner, shall, on notice to and hearing of 
the applicant, view the premises and assess the damages (2), 
and, within thirty days after the application, file the same, 
with their doings thereon, in the office of the town clerk for 
record.— Gen. Sts. p. 147, c. 6Q, s. 20. 

(1) For necessary alterations made with due care in the highway, there could, but 
for the statute, be no recovery in any form.— 17 R. 477; Digest, p. 10, s. 19; 32 R. 441 ; 
43 Maine, 322; 28 Vt. R. 824; 13 Allen, 146, 159; 1 Pick. 418. It will be no answer to 
an application under this section, that the alteration was unnecessary or unlawful, 
although the surveyor in such case will be liable to a suit at the election of th 3 party 
injured. See s. 21 (a), ante. 

If persons employed in constructing a highway necessarily enter upon the adjoining 
land, doing as little damage as may be, they are not trespassers; nor if their cattle thus 
used stray upon the land. — 13 Maine, 250. 

The owner of the adjoining land has a right to fill it up though by doing so he inter- 
rupts the flow of surface water from the highway. — 51 Maine, 521. 

(2) The assessment is to embrace all past, present f nd future damages.— 47 R. 173, 
179. 



246 MAKING AND REPAIRING HIGHWAYS. 

(a) The application to the selectmen may be as follows : 
To the Selectmen of the town of : 

The undersigned, N S , and J S , wife of said N S , res- 
pectfully represent that in repairing the highway in said town leading from by 

the dwelling-house of said J S to , in said town, on the — day of 

last, by the authority of said town, the grade of said highway was raised, whereby 
damage was occasioned to the land and estate of said J S , adjoining said high- 
way, a,ad they therefore request you to view the premises and assess the damages oc- 
casioned to her by the altering of said grade. 

Dated at said , this — day of , 18—. 

N S . 

J S . 



23. Appeal by owner. If the owner is aggrieved by the 
assessment, or if the selectmen neglect to file the same 
within thirty days as aforesaid, he may petition (1) the 
supreme court for an assessment or increase of the damages, 
and like proceedings shall be had thereon as in case of 
damages in laying out a highway. — id. s. 21. See ante, s. 
22 (1). 

(1) The petition to the court upon the neglect or refusal of the selectmen should set 
out the claim substantially as in the application to the selectmen, but may well give a 
more minute description of the premises and of the injury than is necessary in such 
application. — 47 It. 173. See ante, p. 231-2, ss. 45, 46, for general forms, and s. 22 (a) ante. 

24. Money tax. Highway taxes shall be paid in money, 
when the town, at the time of raising the money for which 
the tax is assessed, so direct ; and such taxes shall be com- 
mitted to the collector, and when collected shall be ex- 
pended in repairing the highways, by the selectmen or sur- 
veyors of highways, as the town may direct. — id. s. 22. 

25. Powers of collector. The collector shall have the 
same powers and be subject to the same liabilities, in rela- 
tion to such tax, as in relation to the state tax. — id. s. 23. 

26. Accounting. Surveyors of highways shall, in June 
next after the expiration of their term of office, account to 
the selectmen for the taxes on their lists, and pay any un- 
expended balance into the town treasury ; and upon their 
neglect to account or pay such balance, proceedings may be 
had against them by extent as in case of delinquent collec- 
tors of taxes. — id. s. 24. 

27. Repairs by contract. Towns may, by vote or by- 
law, authorize their selectmen to contract for keeping their 
highways and bridges or any part thereof in repair, for a 
term not exceeding five years. — id. s. 25. 

28. Willful injury to highways. Whoever without au- 
thority willfully injures any highway or bridge thereon, by 
destroying or taking away any plank, timber, stone or other 
material thereof, or by digging any pit therein, shall be 



MAKING AND REPAIRING HIGHWAYS. 247 

fined not more than one hundred dollars, or imprisoned not 
more than six months. — id. s. 26. 

29. Liability for damage. The person so injuring any 
highway or bridge shall be liable to the town for the damage 
thereto, and for the damages to which the town are subjected 
thereby. — id. s. 27. 

30. Towns when to be fined. Any town which neglects 
to make any new highway, or alterations in an existing 
highway therein, as laid out or altered, or to grade the hills 
in any highway therein as prescribed therefor, or to cause 
a dangerous embankment or causeway in such highway to 
be securely railed, or otherwise to keep any such highway 
in good repair, suitable for the travel thereon, shall be fined 
for such neglect. — Gen. Sts. p. 149, c. 68, s. 1 ; Digest, p. 
413. 

31. Indicted, when. An indictment may be found or an 
information filed against any town for such neglect, and a 
summons thereon shall be issued to the town and served, 
by giving to one of the selectmen and the town clerk, or 
leaving at their respective places of abode, an attested copy 
thereof, and of the officers' return thereon, thirty days be- 
fore the court at which it is returnable. — id. s. 2. 

32. If upon default or otherwise the town is adjudged 
guilty, they shall be fined in such sum as may be sufficient 
to pay the expense of putting the highway in repair, with 
incidental charges and costs. — id. s. 3. 

33. Fees of witnesses. No fees for witnesses in such 
case shall be taxed, unless they have attended by order of 
the prosecuting officer. — id. s. 4. 

34. Execution. Execution may issue for such fine and 
costs as in a civil suit, and when collected the fine shall be 
paid to the agent appointed as provided in the section fol- 
lowing, and the costs to the county. — id. s. 5. 

35. Agents to expend fine. So much of said fine as may 
be required therefor shall be expended, by one or more 
agents appointed by the court, in putting such highway in 
repair ; and if the same is insufficient a further fine, to be 
collected and expended in like manner, may be imposed, 
until the amount is sufficient. — id. s. 6. 

36. Shall render an account. The agent shall return 
to the court an account of his expenditures and services, 
and shall retain out of the money in his hands such com- 
pensation as the court may allow. — id. s. 7. 



24! 



MAKING AND REPAIRING HIGHWAYS. 



37. Suits against town. Towns are liable for damages 
happening to any person, his team, or carriage, traveling 
upon a highway or bridge thereon, by reason of any obstruc- 
tion, defect, insufficiency or want of repair which renders 
it unsuitable for the travel thereon. — Gen. Sts. p. 150, c. 
69, s. 1. See post, c. 44. 

38. Kemedy over. The town shall have a remedy over 
against the surveyor (1) of highways through whose fault 
or neglect any such damage happened. — id. s. 7. See post, 
p. 527, ss. 15-18. 

(1) His liability to tlie town for damages arising from the want of repairs in a high- 
way, in general ceases when he has, in good faith, caused all the taxes in his warrant 
to be worked out, unless a further amount be placed in his hands by the selectmen. — 
29 R. 94. 

(a) Towns have a qualified interest in the roadways and bridges they have erected, 
and ru y maintain an action upon the case for the destruction or obstruction of the 
road, or the conversion of the materials. — Digest, p. 409, s. 298. 

39. The form op a surveyor's warrant may be : 



THE STATE OF NEW HAMPSHIRE. 



To 



, Surveyor of Highways for district No. — , in the 

town of for the year 18 — . 

In the name of said state you are required to cause the 
taxes embraced in the list herewith committed to you to 
be worked out, under your direction, upon the highways in 
your district, or otherwise collected according to law. See 
ante, s. 11 ; and pp. 189-193. 

You will allow the following prices for labor, materials 
and use of tools : 



One man per hour cts. 

One boy " " 

One yoke of oxen per hr. " 
One horse " " 



One cart per hour cts. 

One iron scraper per hr. " 
One plow " " 

One shovel and hoe per day " 



You will allow for the time necessary- for travel to and 
from home and the place where the work is to be done. 

You must give personal notice to each person named in said list, or leave at his 
usr^al place of abode a notice in writing of the amount of his tax and of the time when, 
the place where, and the tools and animals with which, he shall attend to work out the 
tax, four days (exclusive of Sunday and the day of the notice) before the day appointed, 
arid may require any person to work out not more than one half his tax in labor of ani- 
mals. In cases of sudden emergency requiring immediate remedy, you may give such 
notice to attend forthwith. 

If any person so notified does not attend in person or by one or more suitable labor- 
ers, you shall levy his tax by distress as collectors may levy the state tax, unless with- 
in four days after the time so appointed he renders for you a sufficient excuse for his 
neglect ; in which case he shall be notified to work at some other time. 

You will not proceed by distress until after fourteen days from the day such delin- 
quent person shall have been notified as aforesaid of the amount of his tax, unless he 
has removed from the town or, as you have good reason to believe, is about to remove 
from the town. 



MAKING AND EEP AIRING HIGHWAYS. 249 

You snail not make distress of any person's tools or implements necessary for his 
trade or occupation, nor of his arms or utensils of household necessary for upholding 
hie, nor of bedding or apparel necessary for him or his family. 

You must keep the property distrained four days exclusive of Sunday and the day of 
taking (unless the tax and charges snail be sooner paid) at the cost of the owner; and 
if the tax, cost and lawful charges are not then paid, you are to post in two or more 
public places in the town where the sale is to be, twenty-four hours before the time of 
sale, a notice of the place, day and hour of sale, with a particular description of the 
property to be sold; and at the time and place appointea! (which must be in the town 
where the distress is made, and betioeen the hours of ten in the forenoon and six in the 
afternoon, and within forty-eight hours after the expiration of said four days), you are 
to sell the property distrained (or so much thereof as maybe necessary) at public 
auction to the highest bidder. 

Immediately after such sale you are to deliver, or have in readiness to be delivered, 
to the owner upon request a particular account in writing of his taxes, your fees, the 
charges of keeping and sale, and the amount of sale of each article sold, with the over- 
plus if any after deducting such tax and charges. 

For want of goods or chattels whereon to make distress you may take the body 
of any person so neglecting or refusing to pay and him commit to the 'common jail in 
the county, there to remain until discharged by paying said tax and all lawful charges, 
or otherwise by due course of law, giving to the jailer an attested copy of your warrant, 
and certifying thereon the amount of the delinquent's tax and your charges, and that 
you have taken his body for want of goods and chattels whereon to make distress] (1). 

You may purchase timber, plank and other materials necessary for the repair of high- 
ways and bridges in your district at the expense of the town. You may remove gravel, 
rocks or other material (doing no damage to the adjoining land) from one part ot a 
highway in your district to any other part of the same highway or any other highway 
therein, for the purpose of grading or otherwise repairing the same. 

In repairing said highways, no uncovered trench or ditch shall he made by the side of 
the traveled part thereof next and opposite to a dwelling-house, yard or private way 
leading into any field, land or other enclosure on said highway; nor shall any highway 
be repaired in any manner so as to obstruct the passage to such house, yard or private 
wav. 

You shall cause all incumbrances upon any highway in your district to be removed 
as provided in chapter 70 of the General Statutes. 

You will allow any non-resident highway tax included in your list to be worked 
out at any time between June 1 and July 20, but will not yourself otherwise enforce 
the collection of such tax (2). 

If the highway taxes upon your list shall be insufficient you shall give reasonable 
notice of the fact to the selectmen; and in June next after the expiration of your term 
of office, account to the selectmen for the taxes on your list, and pay any unexpended 
balance into the town treasury. 

The limits of your district are as follows : [Insert.] 

Given under our hands this — day of , 18 — . 

) Selectmen 

\ of 



A warrant with the parts in small type wholly omitted 
would be a legal warrant. 

(1) See s. 11 (1). 

(2) See ante, p. 201, s. 21. 

40. A notice to work out a tax may be as follows : 

To ■, of the town of ; 

You are hereby notified that a highway tax, amounting 
to dollars and — cents, against you, has been com- 
mitted to me with a warrant to collect the same, and that 
you are required to appear at , in said town, on the 



250 MAKING AND REPAIRING HIGHWAYS. 

— day of next, at — o'clock in the forenoon, with a 

shovel and hoe and one yoke of oxen to work out said tax. 

Dated at said ■, this — day of , 18 — . 

, Surveyor of Highways. 

41. Highways, what are. Highways are only such as 
are laid out in the mode prescribed therefor by statute (1), 
or as have been used as such for public travel thereon, 
other than travel to and from a toll-bridge or ferry, for 
twenty years (2). — Gen. Sts. p. 149, c. 68, s. 8. 

(1) It is not every neglect to comply with the statute that will render the proceed- 
ings void. In general if the court or selectmen acquired jurisdiction by a sufficient 
petition, any neglect to give notice, or to award damages to a particular land-owner, or 
any other mere irregularity, will not necessarily be fatal; the laying out will be valid 
until reversed or set aside upon certiorari — Digest, p. 397, s. 48, p. 398, ss. 57-59, p. 403, 
ss. 162, 163; 24 Maine, 310; 14 Gray, 490. 

• Such laying out may be confirmed, and the objections to it waived by the parties 
interested'. 

It can be avoided only by those whose rights and interests have been disregarded by 
the neglect to comply with the law.— Digest, p. 398, ss. 58, 59 ; see ante, p. 227, ss. 33, 36. 

(2) The use of the road by the public as a highway for twenty years will make it a 
public highwav by prescription, against all parties interested.— Digest, p. 396, s. 20; 

47 Maine 342; 8 Allen, 493. But on the other hand, by Gen. Sts. c. 70, ss. 9, 10, the 
adjoining owner cannot, by occupying adversely for any length of time, acquire any 
prescriptive right as against the public. Held otherwise under the Revised Statutes. — 
Digest, p. 1, s. 11. The jury may find that a highway by dedication and user for 
twenty years extends beyond the traveled path to the fences; and evidence of reputa- 
tion and of acts of the town recognizing its existence to those limits, is admissible for that 
purpose.— Digest, p. 396, s. 25; 35 Maine, 242. It has been held, in Maine, that the 
record of a defective laying out is not admissible to show the limits of a highway by 
user. — 21 Maine, 169 ; 18 do. 409. If the use was with gates and bars, or upon the ice 
only, the right of the public will be subject to the same restriction.— 46 Maine, 423; 

48 do. 456; 8 Cush. 157, 195. If the road has not been recognized in any manner by the 
town, a user for twenty years will not make it a highway, for which the town is 
chargeable, especially if the use has been only occasional and for special purposes. — 
Digest, p. 396, s. 24; or if the street has been marked " private way." — 3 Allen, 398. 

42. Private roads, see ante, s. 41 (2), pp. 227-8, ss. 37' 
38, p. 232, s. 48, p. 243, s. 14 (a). 

43. Sidewalks, see ante, p. 217, s. 8 (b). 

44. Turnpike roads, see ante, pp. 216-17, s. 3 (b) ; s. 9 
(1) ; s. 11 (a). 

45. Ways by necessity. Where a public highway be- 
comes temporarily obstructed and impassable by reason of 
a flood, a heavy snow-drift, the falling of a tree, or the like, 
the passenger may pass around such obstructions upon the 
adjoining land, without being a trespasser — 46 R. 631 ; 7 
Cush. 408. But he does this at his own risk, the town not 
being obliged to make repairs outside of the highway. — 8 
Met. 388. 



HIGHWAYS NOT IN ANY TOWN. 



251 



CHAPTER XLIII 



HIGHWAYS NOT IN ANY TOWN. 



County, to make and repair roads, s. 1. 

To contribute to expense, s. 3. 
Extent against land-owners, ss. 5, 6, 7. 
Justice to call meetings, s. 8. 



Notice to land-owners, s. 4. 
Owners of land, to pay county, s. 2. 

May assess tax, s. 8. 
Tax by land-owners, ss. 8, 9. 



1. County to repair, when. Highways not in any town 
or place liable for the repair of highways shall be made and 
repaired by the county ; and every county shall be liable as 
towns, to individuals and to the public, for neglect therein. 
—Gen. Sts. p. 148, c. 67, s. 1. 

2. Owners of land. The owners (1) of all the lands 
lying in a body, surrounded by toWns and places liable to 
repair highways therein, or in part by such towns and 
places and in part by the boundary of the state, shall pay 
to the county the expense of making and repairing the 
highways therein ; except such part thereof as the county 
is ordered to pay under the provisions of the next section. — 
id. s. 2. 

(1) It is necessary under the constitution that a law for such a purpose should be 
general.— 4 R. 572; Digest, p. 158, s. 35. 

3. County to contribute. Upon petition of any persons 
interested, notice to the county commissioners, and a hear- 
ing thereon, the supreme court may order such part of the 
expense of making and repairing highways through such 
land as they may deem just to be paid by the county ; and 
may, upon like proceedings, modify such order, as may 
from time to time appear proper. — id. s. 3. See ante, p. 
229, s. 41. 

4. Notice to owners. The county commissioners shall 
give notice, by publication, to the owners of lands so liable, 
describing such land by its boundaries on towns and places 
liable to repair highways, of the amount so expended and 
chargeable to said owners, requiring them to pay the same 
to the county treasurer within ninety days. — id. s. 4. 

5. Extent. If said sum is not so paid, the commissioners 
shall issue their extent therefor, directed to the sheriff or 
his deputy, requiring him to levy upon, advertise and sell 
so much of said land as may be necessary to pay said sum, 
with interest and the costs of levy and sale. — id. s. 5. 



252 HIGHWAYS NOT IN ANY TOWN. 

6. Levy of. The officer shall levy such extent, advertise 
the sale by publication, and sell so much of said land at 
auction as may be necessary, in the manner lands are re- 
quired to be sold, for non-resident taxes. — id. s. 6. 

7. Sale and redemption. The lands, if lotted, shall be 
sold by lots ; if not lotted, in parcels of one hundred acres 
each ; and the owner of any land so sold may redeem the 
same, by paying into the county treasury, for the use of the 
purchaser, the purchase-money of the same and interest at 
the rate of twelve per cent. — id. s. 7. 

8. Justice to call meeting. A meeting of the owners 
of the lands described in such notice may be called by a 
justice, upon petition of any person interested in said lands ; 
and said owners, at such meeting, may choose a moderator 
and clerk, assessors and a collector, and raise by tax upon 
all said owners the amount for which they are so liable 
with incidental charges, and any costs and interest which 
may have accrued thereon. — id. s. 8. See ante, pp. 41, 42, 
ss. 23, 24. 

9. Tax, how collected. The same proceedings shall be 
had in the collection of said tax as are prescribed for the 
collection of taxes in unincorporated places. — id. s. 9. 



SPECIAL DAMAGES TO TRAVELERS. 



253 



CHAPTER XLIV 



SPECIAL DAMAGE TO TRAVELERS. 



Action against town, s. 1. 

Against individuals, ss. 15, 17, 18, 20, 
21, 22. 

By traveler only, s. 1 (a). 

For special damage only, s. 1 (a). 

For team, etc., s. 1 (a). 
Attempting to pass, s. 11 (c). 
Awning over sidewalk, s. 12 (e). 
Barriers, town to erect, s. 12 (h). 
Bridge not lighted, s. 12 (k). 
Burden of proof, ss. 6, 11 (h). 
Carriage, what is, s. 7. 

If defective, effect, s. 11 (b). 
Car in motion, s. 12 (a). 
Cause of injury, s. 10. 

Proximate cause, ss. 10 (a) 11. 
Coasting, s. 12 (b). 
Damages, rule for, s. 19. 

Indirect, s. 19 (a). 

Smart money, s. 19 (c). 

Unskillful treatment, s. 19 (a). 
Droves of cattle, ss. 5, 6. ' 
Elephant, s. 1 (a). 
Fast driving, s. 11 (d). 
Fright, objects of, s. 12 (g). 
Highway surveyor, when liable, s. 16. 

When barred, s. li (g). 
Husband and wife, ss. 7, 11 (f). 
Outside of highways, ss. 8, 12 (d). 
Insufficiency of "highway, s. 12. 

Awning over sidewalk, s. 12 (e). 

Bridge not lighted, s. 12 (k). 

Car in motion, s. 12 (a). 

Coasting, s. 12 (b). 

Fright, objects of, s. 12 (g). 

Lumber, deposits of, s. 12 (d). 

Outside of highway, ss. 8, 12 (h). 



Outside of traveled path, ss. 8, 12 (d). 

Pig-pen and squealing pigs, s. 12 (b). 

Railing, want of, s. 12 (h). 

Sidewalks, s. 12 (k). 

Snow and ice, s. 12 (f). 

Sudden obstruction, s. 14. 
Intoxication, s. 11 (e). 
Jury, province of, ss. 11 (c), 12. 
Land-owner, obstruction by, s. 12 (c)(d). 
Load, meaning of, s. 7. 

When excessive, ss. 3, 4, 6. 
Lumber and wood, s. 12 (c), (d). 
Negligence or fault of plaintiff, s. 11. 

Attempting to pass, s. 11 (c). 

Burden of proof, ss. 13, 11 (h). 

Carriage horse or harness, s. 11 (b). 

Fast driving, ss. 11, il id). 

Husband and wife, s. 11 (f). 

Intoxication, s. 11 (e). 

Parent and child, s. 11 (f). 

Sunday, traveling on, s. 11 (d). 

Violating law, s. 11 (d). 

Wrong side of road, s. 11 (a). 
Notice of defect, s. 13. 
Notice to surveyor ss. 17, 18. 
Other towns and persons, s. 12 (c). 
Parent and child, ss. 1 (a), 7, 11 (f ). 
Place of accident, s. 8. 
Plaintiff in fault, s. 11. 
Railroads, s. 15. 

Remedy over by town, ss. 15, 16, 17. 
Sidewalks, s. 12 (e). 
Snow t and ice, ss. 2, 12 (f). 
Subjects of injury, s. 7. 
Sunday traveling, s. 11 (d). 
Turning to the right, ss. 20-22. 



1. Towns made liable. Towns are liable for damages 
happening to any person, his team, or carriage, travel- 
ing (1) npon a highway or bridge thereon, by reason of any 
obstruction, defect, insufficiency, or want of repair, which 
renders it unsuitable for the travel thereon. — Gen. Sts. p. 
150, c 69, s. 1. 



(a) The language of the statute has been changed by omitting the word special be- 
fore damages, and inserting the words traveling upon a, highway, and by other altera- 
tions less material. It is presumed, however, that the plaintiff must still show special 
damage.— Digest, p. 410. 322; 22 Vt. 114; 3 Allen, 574; 11 Grav, 26, 7 do. 271, 3 do. 575; 
7 Cush. -264, 8 do. 524, 6 do. 141; 13 Met. 297, 2 do. 560. 

The town is not liable except to a person or for a team, etc., traveling upon the 
road. If a post or railing gives way while a person stopping for conversation is lean- 
ing against it, as in 3 Allen, 374, or a horse is injured when running upon the highway 
without a driver, although previously tied at the side of the road by the traveler, as 
in 13 Grav, 344, or a child when using a highway as a play-ground simply, as in 8 
Allen, 237, the town is not liable.— 44 R. 248; Gen. Sts. c. 69. s. 1. 

It was held in 14 Grav that the town might be liable for the loss of an elephant ; but 
this could not be under our statute, unless a part of the plaintiff's team. The action 
is local. See 15 Maine, 91. 



254 SPECIAL DAMAGE TO TRAVELERS. 

2. Snow. They are liable for damages happening from 
the snow incumbering the same, as from any other defect, 
id. s. 2. 

3. Load. Towns and other corporations are not liable for 
such damages to a person traveling with a loaded carriage, 
when the load, exclusive of the carriage (1), exceeds five 
tons. — id. s. 3. 

(1) Tlie driver is not a part of the " load," nor is the rack.— 25 Vt. R. 163. 

4. They are not liable for such damages when the 
weight of the load, exclusive of the carriage, exceeds three 
tons, unless the width of the felloes of the wheels, if a two- 
wheeled carriage, is at least five inches, and if a four- 
wheeled carriage, three and one half inches. — id. s. 4. 

5. Droves of cattle. They are not liable for such dam- 
age happening to droves of cattle, by reason of the defi- 
ciency of a bridge, if when it happens the number of cattle 
on the bridge exceeds twenty-five. — id. s. 5. 

6. Burden of proof. Upon the trial of any action for 
the recovery of such damage, it is incumbent on the plain- 
tiff to prove the weight of the load and width of the felloes, 
and the number of cattle on the bridge. — id. s. 6. 

7. Subjects of injury. The word carriage in the statute 
includes whatever carries the load, whether upon wheels or 
runners, and also that which is carried, whether on wheels 
Oft* runners or on horseback. Thus the town may be liable 
for an injury to the traveler's sled and load of coal. — 46 R. 
521. 

As the liability is to the traveler only, a husband or father 
cannot recover for loss of service and expense incurred by 
reason of an injury to his wife or child, and therefore the 
suit cannot be brought in his name. — Ante, s. 1 (a) ; 32 
Maine, 538; 20 do. 246; 4 Cush. 310; 17 Conn. 475; 
(contra 20 R. 77 ; 37 Yt. 150). The town is not liable un- 
less by statute. — id. ; contra 20 R. 77. The owner of the 
team may recover in his own name. — 2 R. 392 ; 35 R. 271. 
See s. 19, post. 

In a suit by husband and wife for an injury to her, it has 
been held in Maine that damages may be awarded for the 
loss of time and the expenses of the cure. — 32 Maine, 536. 
And this seems reasonable. See 31 R. 349. 

8. Place of injury. As towns are not required to grade 



SPECIAL DAMAGE TO TRAVELERS. 255 

the whole width of the laid out road, it is held that when 
one voluntarily goes out of the traveled path, as in passing to 
or from a private way, or to find more snow, the town is in 
general not liable.— 19 Yt. 470 ; 13 do. 270, 275 ; 4 Gray, 
65, 69 ; 7 Cush. 498 ; 13 Met. b5. But if he leaves from a 
reasonable fear of injury, as to prevent being run over, or if 
he is forced into the ditch by accident the town is liable. — 
21 Vt. 391 ; 38 do. 270, 275 ; 6 Gray, 447. 

9. And the town may be liable although the actual in- 
jury was received wholly outside of the laid out road, as where 
for want of a railing at a dangerous place the traveler runs 
off the bank, and himself or his horse or carriage is injured 
outside, in consequence. — 10 Allen, 25 ; 3 do. 402 ; 5 Gray, 
61 ; 7 Pick. 188. 

10. Cause of injury. If the defect in the highway was 
the prime moving cause, and the plaintiff was not in fault 
in any particular, it is immaterial in this state that the 
wrongful act of a third person, or other causes for which the 
plaintiff is not responsible, contributed to the injury. — 44 
E. Ill ; 42 R. 215 ; 32 R. 63 ; Digest, p. 410, s. 323, p. 
411, s. 338. See also 21 Yt. 391, 394 ; 15 do. 708 ; 9 do. 
411. The law is held otherwise in Mass. — 4 Allen, 195 ; 
11 do. 321 ; 7 Gray, 100 ; and in Maine, but by a divided 
court.— 51 Maine, 127. See also 3 Allen, 402 ; 2 Cush. 600. 

If a traveler in the exercise of ordinary care and pru- 
dence leaps from his carriage because of its approach to a 
dangerous place or object in the road, and thereby sustains 
an injury, the town is liable, though the carriage or travel- 
er does not come in actual contact with the obstruction. — 
11 Cush. 563. 

(a) Whether the town would be liable for an injury to a traveler by being run over 
by a horse, acting under the immediate effect of a fright from the overturning of the 
carriage of a third person, to which the horse had been attached, the overturning being 
caused by a defect in the highway— see 4JGray, 395-414; post, s. 19 (b). 

11. Plaintiff in fault. If the damage sustained by the 
plaintiff was in any degree directly caused by his own fault or 
negligence, he cannot recover ; but though he may have been 
in fault, yet if his fault in point of fact in no way contribu- 
ted to the injury, he may recover. — Digest, p. 412, ss. 350, 
360 ; 35 R. 271, 276 ; 39 Vt. 246 ; 38 do. 667. 

The degree of caution used by the plaintiff should be in 
proportion to the apparent danger, and is reo x uired to be 



256 SPECIAL DAMAGE TO TRAVELERS. 

such as persons in general exercise under like circumstances, 
and the question is usually one for the jury. — Digest, p. 412, 
ss. 351-356 ; 32 Maine, 574 ; 39 Yt. 252 ; 8 Allen, 522 ; 
1 do. 177 ; 12 Cush. 488 ; 6 do. 524 ; 4 do. 247 ; 21 Pick. 
146 ; 13 do. 94 ; 7 do. 188 ; 2 do. 621. 

(a) Wrong side of the road. Where a traveler, driving in the night, came in collision 
with an approaching carriage, and was forced oft" a bridge which had no sufficient rail- 
ing, it was held that he might recover of the town, provided he was using ordinary- 
care and prudence, notwithstanding the accident toould not hace happened, if he had 
given the other traveler one half of the road.— Digest, p. 412, s. 360. See also 3 Allen, 
176 ; 11 Gray, 418. 

(b) If vices of the horse, defects in the carriage or harness, used by the plaintiff, con- 
tributed to the injury, he may still recover provided he can show that he did not know, 
and teas in no fault in not knowing of their existence — Digest, p. 412, s. 353; and so in 
Vermont— 16 Vt. 230; 19 do. 411 ; but held otherwise in Maine and Massachusetts. — 42 
Maine, 346 ; 38 do. 214 ; 32 do. 46 ; 4 Gray, 178. Proof of shying, before and after, is 
competent to show the horse unsafe. — 43 11. 356; 8 Allen, 51 ; 15 Maine, 27. 

(c) If a highway is manifestly unsafe, one who attempts to pass, ordinarily does it at 
his own risk. It is for the jury to say whether the plaintiff was in the exercise of 
common prudence, both in attempting to pass and while passing— 22 R. 559; 43 R. 265; 
Digest, p. 412, ss. 351, 352 ; 36 Vt. 355 ; $7 do. 443, 470; 12 do. 338 : 6 do. 245 ; 12 Allen, 85 ; 
8 do. 137; 5 do. 1; 3 do. 21; 12 Cush. 488; 16 Maine, 187. An attempt to pass before the 
road is constructed and open tojmblic travel, must usually at least be deemed unwar- 
rantable.— 13 Pick. 102; 21 do. 44, 102, 108; 5 Cush. 1; 12 do. 259; 1 Allen, 128. 

(d) It is held in Massachusetts that the plaintiff cannot recover if he was injured 
while violating a statute, as in case of a person traveling on Sunday contrary to the 
statute, or a person driving faster than allowed by a city ordinance. — 18 Allen, 18 ; 9 do. 
118; 3 do. 408; see also 39 Maine, 194, 198. The precise' question has not been decided 
in this state, but the leaning of the court seems to be against the Massachusetts doc- 
trine.— 35 R. 545; Digest, p. 412, ss. 357-359. 

Traveling on Sunday, to make a social visit, is not prohibited, and will not preclude 
a recovery against the town. — Corey vs. Bath, 35 R. 531. In Dutton vs. Weare, 17 R. 
34, a recovery was had against the "town by a person teaming on Sunday with eight 
horses, between Vermont and Boston; the court saying that there was no evidence 
that it was to the disturbance of others ; see 47 R. 35. 

(e) The mere fact that the plaintiff was intoxicated will not preclude a recovery by 
him ; the question is still one of reasonable care, as in other cases. — 48 Maine, 456 ; 3 Al- 
len, 402. 

(f ) Negligence of the parents may prevent a recovery by a child. — 4 Allen, 283 ; 38 Vt. 
59. If a blind man do not have an attendant, it may be negligence, but is not necessa- 
rily.- -38 Vt. 59. 

Her husband's want of care in driving will bar the wife the same as if the negligence 
were her own.— 38 Vt. 440, 447. And the court say that it would be the same if a ser- 
vant, or a stage driver, or any other person were negligent in driving. 

(g) A highway surveyor who neglects to notify the selectmen that his tax is insuffi- 
cient, cannot recover for an injury to himself from a defective highway in his own dis- 
trict.— 8 Allen, 522. 

(h) Burden of pjroof. It is for the town to show that the night was so dark as to be 
unsafe to travel.— 27 Vt. 62, 68. If it appears that the plaintiff is chargeable with some 
fault, he must show that it was no cause of the injury. It will not be presumed that he 
was in fault until there is some evidence of it. If there is evidence tending to shoio it, 
but the evidence is conflicting or uncertain, it would seem that the burden of proof in 
reference to it, is upon the defendant, although there are manv authorities to the con- 
trary. See 41 R. 289; Digest, p. 331, s. 123; 50 Maine, 222; 43 do. 492; 39 Vt. 253; 
27 do. 443; 28 do. 50; 37 do. 501; 7 do. 152; 6 Allen, 39; 8 do. 522. 

12. Insufficiency of highway. Under proper instruc- 
tions as to the meaning of the terms, the question whether 
the highway was obstructed, defective, insufficient, or in 
want of repair, is for the jury, who will decide from the 
character of the road, the amount and kind of travel, and 
all the circumstances of the case, whether the highway 
was reasonably safe and suitable for the travel thereon, or 



SPECIAL DAMAGE TO TRAVELERS. 257 

and whether or not it ought to have been repaired before the 
accident. — Digest, pp. 411, 412, ss. 341-849. But it can- 
not be shown that the town was poor and unable to support 
the highways in it. — Digest, p. 410, s. 326. 

(a) It is held in Massachusetts that a rope while in motion across the highway, by 
human agency, or a railroad, car while in motion upon a highway under the direction 
of the corporation, although wrongfully there, does not make the highway defective, 
nor the town liable for an injury from it to a traveler. — 11 Allen, 312, 321; 7 Gray, 431. 
The word obstruction is not in the statute of that state. 

(b) Coasting. It has been held that a city is not liable for an injury to a traveler, 
from coasting in the public street and highway, even if so great a hindrance to the 
travel as to be a public nuisance. — 16 R. 59; 4 Allen, 113; 11 do. 321. 

It has since been decided here that a pig-pen with pigs in it, which by their squeal- 
ing frighten horses, although outside of the traveled path, may be deemed an obstruc- 
tion for which the town is liable. 

(c If, in repairing highways, they are encumbered beyond ichat is reasonable and 
necessary, or if there is any neglect to warn the traveler of danger, especially in the 
night time, and guard against it, the town will be liable as in other cases.— 3S Maine, 
195; 16 do. 189; 27 Vt. 62, 68; 16 Pick. 170; 4 Gray, 596. 

(d) Towns are not required to grade the whole width of common highways, but it is for 
the jury to say whether defects and obstructions, not in the traveled part, render the 
highway insufficient or unsafe.— Ante, s. 8; 35 R. 258, 304; 43 R. 350; 8 Grav, 504; 4 do. 
65; 7 do. 388: 6 Cush. 498; 4 do. 307,365; 10 do. 260; 2 Allen, 554; 16 Pick. 189; 46 
Maine, 483, 485; 39 do. 193; 23 Vt. 9; 12 do. 338. 

The same rule applies to deposits of lumber, etc., bv the owner of the soil. — 13 R. 
356; 42 R. 197. 

(e) If a dangerous awning over a sidewalk fall upon a traveler, the city is held liable 
in Massachusetts— 13 Met. 292; but is held not liable for an injury to a traveler from 
snow and ice falling uj)on him from projecting eaves of buildings.— 13 Gray 62; 2 Allen, 
553. 

(f) The town mav be liable for an injury by reason of snowdrifts. — 17 R. 34; ante, 
s. 2; or from ice.— 35 R. 52; 12 Allen, 566; 10 Cush. 262; 14 Gray, 249; 13 do. 59; 7 do. 
100 ; 3 Allen, 405. See also 37 Maine, 250. as to freezing and thawing. 

(g) A highway, though otherwise sufficient, may be defective, and the town liable, 
because of objects ca^culaJed to frighten horses of ordinarv gentleness.— (b) ante; 43 R. 
356; 42 R. 197; 26 Maine. 241; 30 Conn. 129; contra, 13 Allen. 186; 2 do. 552. 

(h) The want of a safeguard or railing against a dangerous place near the highway 
may be regarded as a defect in the highway.— 35 R. 304; 41 R. 329; Digest, p. 33, s. 51; 
13 Allen. 429, 432; 10 do. 290; 7 Gray, 338; 6 Cush. 396; 4 do. 299; 2 do. 600; ante, s 8. 

(i) Evidence in respect to other towns and persons is not admissible upon the ques- 
tion of the sufficiency of the highway; hut it has been received in several cases in other 
states upon the question of reasonable care or prudence on the part of the plaintiff. — 
Digest, p. 336, s. 211; 11 Gray, 342; 1 do. 510. See also 32 Vt. 591; 33 Conn. 57; 9 Allen, 
200; 8 do. 136. 

(k) Bridge not lighted, see post, c. 46, ss. 9, 10. 

Sidewalks, see (e) ante, p 217, s. 8 (b). 

13. Notice of defect. The liability of a town does not 
depend upon the fact whether or not its officers or agents 
had actual notice of the existence of the defect, provided it 
was of such a (1) character that the town was reasonably 
bound, under all the circumstances, to have remedied it. — 41 
R. 135 ; 35 R. 303 ; s. 12, ante, s. U post. See 35 R. 310, 
311; Digest, p. 411, ss. 342, 343 ; p. 412, ss. 347, 348. 

(1) In Maine and Mass., by statute, the town is not liable without notice. 

14. Sudden obstructions, etc. When the immediate 
cause of the accident and injury to the plaintiff is such that 
the town could not have had notice of it, or prevented or 
remedied it before the accident, the town is not liable ; and 

17 



258 SPECIAL DAMAGE TO TRAVELERS. 

it makes no difference whether the injury was thus caused 
by the act of Providence, by inevitable accident, by the 
negligent or malicious act of man, or by all these combined. 
See ss. 12, 13, ante ; Digest, p. 411, s. 345 ; 39 Yt. R. 255 ; 
15 do. 438 ; 7 do. 411. 

15. Railroads. Where a railroad has necessarily cre- 
ated a danger which the town cannot obviate, the town is 
not liable, and the party injured is without remedy — Wil- 
ley v. Portsmouth, 35 R. 304, 314 ; but a wrongful obstruc- 
tion of the highway by a bridge erected by a railroad cor- 
poration, will not excuse the town, or exempt it from in- 
dictment or suit.— 46 R. 452 ; 51 Maine R. 413 ; 27 Vt. 
62 ; 22 do. 458 ; 24 do. 155 ; 1 Allen, 182 ; 16 Pick. 170 ; 
14 Pick. 279 ; 7 Gray, 423 ; 7 Cush. 490. - See ante, s. 12 
(a). 

16. Remedy over. The town shall have a remedy over 
against the surveyor of highways through whose fault or 
neglect any such damage happened. — Gen. Sts. p. 150, c. 
69, s. 7. See ante, p. 248, s. 37 ; Digest, p. 411, ss. 333-340. 

17. Against individuals. Ordinarily when incumbrances 
have been placed in a highway, and one receives injury in 
consequence, the town is liable in the first instance, and 
may have a remedy over against the party causing the 
obstruction, who if seasonably notified will be bound by the 
judgment against the town. — Digest, p. 411, ss. 333-340. 
See ss. 14, 15, ante ; 30 Conn. 118, 535 ; 11 Allen, 154 ; 
9 do. 17 ; 9 Gray, 386 ; 10 do. 496 ; 7 Cush. 496 ; 3 do. 
174 ; 14 Pick. 279. But the party may sue the individual 
who has created the nuisance, at common law. — 12 Gray, 
415 ; 1 Cush. 453. 

18. Notice of suit, form of. 

To , Surveyor of Highways, for district No. — , in the 

toivn of : 

You are hereby notified that — , of , has 

commenced a suit against said town to be entered at the 

supreme judicial court, to be holden at , on the first 

Tuesday of next, for an injury alleged to have been 

received by reason of a defective bridge in the highway 

leading from to , and which comes within 

your district. Said town if found liable in said suit will 



SPECIAL DAMAGE TO TRAVELERS. 259 

hold you responsible if it shall appear that such damage 
happened through your fault or neglect. 

VVitness our hands, this — day of , 18 — . 

) Selectmen 

> of 



19. Damages, rule of. In case of an injury to the per- 
son, damages are to be given for loss of time present and 
prospective, for the actual and probable expenses of a cure, 
for the permanent disability if the injury is probably incur- 
able, and such a sum as the jury deem reasonable for bodily 
pain and mental anxiety by reason of the injury. — 36 R. 
13, 14 ; Digest, p. 238, s. 17 ; 27 Conn. R. 294 ; 1 Gush. 
451 ; 32 Maine, 271 ; 36 Vt. 580 ; 30 do. 738 ; ante, s. 7. 

The plaintiff may recover the value of property destroyed 
or the amount of the injury, although he was only a bailee, 
if he has settled with the owner. — 29 Maine, 310. See also 
Digest, p. 91, s. 10 ; ante, s. 7. 

(a) The town was held liable for the increased damages arising from the unskillful 
treatment of the plaintiff, but without any fault on his part, by a surgeon of ordinary- 
skill and knowledge.— 51 Maine, 439. 

(b) It was held that the plaintiff might recover damages for an injurv received/mm 
his horse, while endeavoring to get him out of a hole in the road — 30 Vt. R. 738 ; and 
for an injury received by his horse, in a prudent endeavor to extricate him. — 6 Gray, 
447 ; 4 Allen, 596. 

(c) It was held in Whipple vs. Walpole, 10 R. 130, that if there has been gross neg- 
ligence on the part of the town, the jury may give smart money ; but the remedy being 
wholly by statute, that decision has since been questioned, though not overruled.— 36 
R. 20. 

20. Turning to the right. Whoever traveling with any 
vehicle meets any other person so traveling, on a highway 
or bridge, shall seasonably turn to the right of the centre 
of the traveled part of the road, so as to enable such person 
to pass with his vehicle without interference. — Gen. Sts. p. 
150, c. 69, s. 8. 

21. Fine or suit. Every person violating the provisions 
of the preceding section shall be fined not less than one 
nor more than ten dollars, and shall be liable for the dam- 
ages occasioned thereby (1). — id. s. 9. 

(^ A traveler, whose side of the road is trenched upon by another, cannot, for that 
reason, carelessly rush upon him or his vehicle, and recover damages for an injury 
sustained thereby— 14 R. 317; Digest, p. 415, ss. 410-415; but, on the contrary, he will 
himself be liable for any damage done to the other party.— 3 Allen, 176; Digest, p. 41ii r „ 
ss. 359, 360. 

If, in a reasonably safe and prudent attempt to pass, under such circumstances, he 
sustain injury, an action will lie for redress.— 14 R. 317. 

D image arising from detention, without collision, would be a valid cause of action in 
favor of the party detained.— id. 



260 



REMOVAL OF INCUMBRANCES UPON HIGHWAYS. 



Semble, that if a traveler voluntarily go upon the left side of the highway, his inabil- 
ity to leave such part of the way would not exonerate him from liability for injuries 
sustained by another by reason of such occupancy. — id. 

In crossing to the left side of the road, to turn up to a house or other object, one 
must not obstruct those who are passing on that side, but must go before, or wait till 
after they have passed. — 11 Maine, 388. 

22. Limitation of suit. No complaint for such violation 
shall be sustained unless made by the person injured, or 
some other by his authority, within ninety days after the 
offence ; and no action shall be sustained for the damages 
occasioned thereby unless brought within one year. — id. s. 
10. 



CHAPTER XLV 



REMOVAL of incumbrances upon highways. 



Selectmen, licenses by, s. 14. 

Appeal from, s. 15. 
Shade trees, ante, p. 11, ss. 10-12. 
Surveyor may remove, ss. 1-6. 

May recover cost of removal, ss. 

May make complaint, s. 4 

May sell incumbrances, s 

To give notice, ss. 1, 4. 

To pay overplus to owner, s. 3. 
Warrant to sell, ss. 5,. 5 (a). 



3, 7. 
4, 5, 6. 



Adverse possession, s. 9. 
Awnings and signs, s. 13. 
Church lot, s. 10. 
Complaint to justice, s. 4 (b). 
Moving buildings, s. 1 (1). 
Notice to remove nuisance, s. 4 (a). 
Nuisances, what are, s. 12. 

Penalties for, ss. 11, 12. 
Public grounds, ss. 9, 10, 11. 
Remedy over by towns, s. 8. 
Sale without warrant, ss. 2, 4. 

By warrant, ss. 5, 5 (a), 6. 

Notices of sale, ss. 2, 5. 

1. Surveyor may remove. If any timber, lumber, stone 
or other thing is upon a (1) highway, incumbering it, the 
highway surveyor may immediately .remove the incum- 
brance, and hold the same in his possession until the costs 
of such removal are paid. — Gen. Sts. p. 151, c. 70, s. 1. 

(11 This is not confined to tbe traveled part of the road. If the town would be liable 
for an injury from such incumbrance it is the duty of the surveyor to cause it to be 
removed at once. See ante p. 257, s. 12 (a), (b), (c), (d). 

A nuisance in a public highway may be removed by any one whose passage is actual- 
ly obstructed by it.— 4 R. 520; Digest, p. 414, s. 402; 12 Maine, 32. 

Moving buildings. Where highways have been commonly used for moving build- 
ings through them, it is no nuisance to use them for that purpose, selecting suitable 
streets, using proper expedition, and causing no unnecessary obstruction; and the 
reasonableness of such use, under all circumstances, is a question for the jury. — 35 A. 
258 ; Digest, p. 414, ss. 404-408. 

2. May sell, when. Such surveyor shall deliver to the 
owner any such incumbrance removed, on being paid the 
cost of removing and keeping the same, within thirty days 
after said removal ; if the cost is not so paid the surveyor 
may sell such incumbrance, on giving four days' notice 



REMOVAL OF INCUMBRANCES UPON HIGHWAYS. 261 

thereof, by posting notices in two public (1) places in the 
town. — id. s. 2. 

If the surveyor sell more of the property than is necessary 
to defray the cost of removing, keeping and selling, it will 
be a conversion.— 24 E. 237 ; Digest, p. 601, s. 132. 

(1) See ante, p. 36, s. 10 (c). 

The form of notice may be : 

SALE OF PROPERTY INCUMBERING HIGHWAY. 

The subscriber will sell at public auction, to the highest 

bidder, on the — day of next, at o'clock in the 

noon, at , in the town of -, ten thousand 

feet of boards found incumbering the highway, or so many 
thereof as will pay the costs of removing and keeping said 

boards, being dollars and cents, and the costs of 

sale. 

Dated at said , this — day of , 18 — . 

, Surveyor of Highways 

For district No. — , in . 



A like notice should be given to the owner if he is known. 

3. Balance of money. The surveyor shall pay to the 
owner of such incumbrance the balance of the money re- 
ceived on the sale thereof, after deducting his costs of re- 
moval, keeping and sale. — id. s. 3. 

4. Notice to remove, etc. The surveyor may, if he 
choose, give reasonable notice to the owner (1) or person 
leaving any such incumbrance to remove the same ; and 
upon his .neglect or refusal, or if he is unknown, he may 
make complaint thereof to a justice of the peace. — id. s. 4. 

(1) If the owner of the adjoining land has by his acts in any way adopted the act of 
one who has placed an obstruction in the highway, he will be liable as owner.— 13 Allen, 
191. 

(a) The notice may be as follows: 



To of the town of : 

You are hereby notified to remove a pile of boards belonging to you [or "left by you"] 

in the highway leading from to , in the town of , as said highway is 

incumbered by them. 

Dated at said , this day of , 18—. 

, Surveyor of Highways for District No. — , in . 

The original is to be served and a copy retained. 

(b) The complaint may be as follows: 

To , a Justice of the Peace in and for the county of : 



A B of , in said county, highway surveyor of district No. — , in said , for 

the year 18 — , complains that on the day of , 18 — , there was a large pile of 

boards, to wit: thousand feet, unlawfully in the highway leading from to 



262 REMOVAL OF INCUMBRANCES UPON HIGHWAYS. 



-, in said town, and incumbering said highway of which , of- 



county, lumber dealer, is owner [or which were left in said highway by , of , 

in said town, teamster], and on that day said complainant gave a notice in writing to 

said to remove said boards, but he has neglected to remove said boards and the 

same still remain incumbering said highway, to the great damage and common nui- 
sance of all persons having occasion to use said highway, and against the peace and 
dignity of the state; wherefore the said A B prays the said justice upon his own view 
of said incumbrance, after due notice and hearing, to issue his warrant to him the 
said A B to remove such boards as far as he shall judge necessary for the public con- 
venience, and to sell so much thereof as may be necessary to pay the legal cost, and 
three times the price of the labor of removing the same, 

A B. 

G , ss., , 18 — . Then the said A B made oath that the foregoing complaint 

by him signed is in his belief true. 

Before me, , Justice of the Peace. 

If the owner and the person leaving the boards are both unknown, the complaint 
should so allege and the words- in italics be omitted. 

(c) The order of notice may be as follows: 

Upon the foregoing complaint I appoint the — day of next, at — o'clock in the 

noon, when I will view the said incumbrance and order that said A B give notice 

thereof to said by giving to him in person, or leaving at his usual place of abode, 

days before the said time appointed, an attested copy of said complaint, and of this 

order thereon. 

Witness my hand at , in said county, this — day of , 18—. 

, Justice of the Peace. 

The copy may be attested by the person serving it. 

The statute does not prescribe the length of notice and it should be reasonable. 

There should be an affidavit of service as on p. 93, s. 10 (b), ante. 

5. Warrant by justice. The justice shall cause notice 
to be given to the owner or person leaving the same, if 
known, of the time appointed by him to view the incum- 
brance ; and after hearing such party, if he attends, may, 
upon his own view, issue his warrant to the surveyor to re- 
move the same so far as he shall judge necessary for the 
public convenience, and to sell so much thereof as may be 
necessary to pay the legal costs taxed by him and three 
times the price of the labor of removing the same, to be 
estimated by the justice. — id. s. 5. 

(a) The form of the warrant may be : 

The State of New Hampshire. 

[L. S.] Grafton ss. To A B, Surveyor of Highways for highway district No. — , in 

the toivn of , in said county ; 

The complaint hereto annexed having been made to me, a justice of the peace in and 

for said county, I appointed the day of , 18 — , when to view the incumbrance 

mentioned in said complaint, and caused due notice thereof to be given to , men- 
tioned in said complaint, and after hearing said , it appearing to me, the said jus- 
tice, upon my own view of said incumbrance, that it is necessary for the public con- 
venience that the boards described in said complaint be removed, I hereby order you 
to remove said boards from the highway aforesaid, so far that no part of the same may 
impede, hinder or endanger the safety of those who may have occasion to travel upon 
said highway, and sell at public auction to the highest bidder so many of said boards 

as may be necessary to pay the legal cost upon said complaint, taxed by me at 

dollars and cents, and the sum of dollars, being three times the price of the 

labor of removing said boards as estimated by me. 

You are to keep such part of said boards as it may be necessary to sell four days (ex- 
clusive of Sunday) from the date hereof, unless the sums aforesaid shall be sooner paid, 

and post up in two or more public places in said town of . twenty-four hours at 

least before the time of sale, a notice of the place, day and hour of sale, with a particu- 
lar description of the property to be sold, and immediately after said sale deliver or 
have in readiness to deliver on request, to the owner, a particular account in writing 
of the sums aforesaid ana the amount of the sale of each article of the property sold. 



REMOVAL OF INCUMBRANCES UPON HIGHWAYS. 263 

Said sale shall be in said town of , within forty-eight hours after the expiration 

of said four days, and between the hours of ten in the forenoon and six in the after- 
noon. Hereof fail not. 

Given under my hand and seal this —day of , 18 — . 

, Justice of the Peace. 

For forms and directions in selling, see ante, p. 190, ss. 6-11. 

If the owner of the incumbrance and the person leaving the same are unknown, the 
warrant should so state and omit the part in italics in the above form. 

6. Sale how made. The surveyor shall have the same 
powers and be governed by the same rules, in making such 
sale, as a collector of taxes in the sale of property distrained 
by him. — id. s. 6. See ante, p. 190, ss. 6-11. 

7. If insufficient. If the proceeds of such sale are in- 
sufficient to pay the sums specified in the warrant, the sur- 
veyor may recover the balance unpaid, by action on the 
case against the person leaving the same. — id. 

8. Remedy over by town. If any person shall place in 
any highway or street, any timber, lumber, stones or other 
thing, to the incumbrance or obstruction thereof, he shall 
be liable to the town (1) for all damages and costs which 
said town shall be compelled to pay to any person who has 
sustained damage by reason of such incumbrance or ob- 
struction. — id. s. 7. 

(1) To the party injured; see ante, p. 258, s. 17; and to indictment. — Digest, p. 227, ss. 
148, 151; 16 Pick. 175; 13 Met. 10. 

9. Adverse possession. No owner of land adjoining any 
public highway shall, by fencing or inclosing any part 
thereof, and occupying adversely for any length of time, 
acquire any prescriptive right thereto as against the public, 
—id. p. 152, s. 8. f 

10. Town lot, etc. Nor shall any person by such acts 
acquire any such right to any part of any town-house, 
school-house or church lot, or to any parade or other public 
grounds. — id. s. 9. 

11. Penalty. Any person who shall knowingly so fence 
in or encroach shall be fined not exceeding one hundred 
dollars, or imprisoned not exceeding six months, or both. — 
id. s. 10. 

12. Nuisances, what. If any building, structure or fence 
is erected or continued upon or over any highway, so as to 
obstruct the same or lessen the full breadth thereof, it 

hall be deemed a public nuisance ; and any person erect- 
ng or continuing the same shall be fined not exceeding 

fey dollars ; and the court shall order such building, struc- 
ture or fence to be removed. — id. s. 11. 



264 SPECIAL PROVISIONS RELATING TO HIGHWAYS. 

13. Awnings, etc. The foregoing section shall not be 
construed to prohibit the erection of any watch-house or 
structure for public use by the selectmen of any town, or 
any sign or awning erected in conformity to the regulations 
established by the police officer. — id. s. 12. 

14. Selectmen may license. The selectmen of any 
town may grant a license (1) in writing to any person to 
occupy a portion of any street, designated by distinct limits, 
for the purpose of laying thereon lumber and other ma- 
terials for building and other purposes, for a time not 
exceeding four months, whenever they shall deem the same 
necessary or proper, subject to such terms and conditions, 
to be expressed in such license, as the public convenience 
and safety may require. — Gen. Sts. p. 510, c. 252, s. 8. 

(1) The form of such a license may be : 
To , of : 

Deeming the same to be necessary and proper, Ave hereby grant you a license to oc- 
cupy the following described portion of the highway in said town leading from 



to , for — months from the date hereof, namely, [give the limits to be occupied,] 

but subject to the following conditions : [Insert.] 

Witness our hands, this — day of , 18—. 

) Selectmen 
\ of 



15. Appeal. Any person aggrieved by the grant of such 
license may apply by petition to the supreme court for re- 
dress, who shall cause such notice to be given to all persons 
interested as they shall judge proper, and may affirm, alter 
or annul such license. — id. s. 14. See ante, p. 232, s. 47. 



CHAPTER XLYI 



SPECIAL PROVISIONS RELATING TO HIGHWAYS. 



Aqueducts, ss. 32, 33. 
Bridges, by-laws for, ss. 4, 5, 6. 

To be covered with snow, ss. 7, 8. 

To be lighted, ss. 9, 10. 

Penalty for removing lights, s. 11. 
Bridges at railroad crossings, ss. 14-24. 
Cattle-guards and crossings, ss. 12, 28. 
Fast driving on bridges, ss. 4, 5. 
Fences at railroad crossings, s. 28. 
Gas-light companies, etc., ss. 32, 33. 
Gates at railroad crossings, etc., ss. 12, 

14-24. 
Guide-boards, ss. 1, 2, 3. 



License to use highway, ss. 30, 31. 
Railroad crossings, etc., ss. 12-24. 
Railroads, rights and duties, 

Bridges at crossings ss. 14-24. 

Cattle-guards, etc., ss. 12, 1:8. 

Fencing, s. 28. 

Gates, ss. 12, 14-24. 

Incidental damages, ss, 21-25. 

License from selectmen, ss. 30, 31. 

Running cars on highways, ss. 30, 31. 

Speed of engines on highways, s. 29. 

Shifting cars, ss. 30, 31. 



1. Guide-boards or posts shall be kept up by towns at 
the junction therein of one highway with another, except 



SPECIAL PROVISIONS RELATING TO HIGHWAYS. 265 

at places designated by vote of the town as not requiring 
them, upon which shall be legibly marked the name of such 
neighboring town as shall be most suitable for the direction 
of travelers, and the ^distance in miles thereto, with an 
index pointing the way. — Gen. Sts. p. 152, c. 71, s. 1. 

2. Penalty for neglect. If any town neglects to keep 
in suitable repair guide-boards or posts as required in the 
section preceding, they shall forfeit for each (1) neglect 
five dollars, for the use of the person suing therefor. — id. s. 2. 

(1) This is a change, and there now seems to be a separate penalty for each junction, 
though it was not so before. See 19 R. 286. 

3. Injuries to. Any person who unlawfully throws 
down, injures or defaces any guide-board or post, or the 
letters or figures thereon, shall be fined not exceeding ten 
dollars, for the use of the town. — id. p. 153, s. 3. 

4. Bridges, by-laws for. Towns may establish by-laws 
to prevent persons from willfully riding or driving at a 
rate faster than a walk over any bridge therein which shall 
have cost one hundred dollars or more, and annex penalties 
not exceeding five dollars for the breach thereof, to be 
recovered by the town. — id. s. 4. 

5. Toll-bridges. The proprietors of any toll-bridge may 
make by-laws to prevent persons from riding or driving 
over such bridge at a rate faster than a walk, and annex 
penalties not exceeding two dollars for the breach thereof, 
to be recovered by the corporation. — id. s. 5. 

6. Posting. No such by-law shall be in force unless the 
town or corporation shall cause to be posted and kept in 
some conspicuous place at each end of said bridge a board, 
painted with a white ground, containing in black letters 
the substance of such by-law. — id. s. 6. 

7. Snow upon bridges. The traveled part of any bridge 
on a highway and of every toll-bridge shall be kept, by the 
town or proprietors, covered with snow in the winter, when 
there is sufficient for sleighing on the ways leading to the 
bridge. — id. s. 7. 

8. Penalty for neglect. Any town or other corpo- 
ration neglecting to comply with the requirements of the 
preceding section, shall be liable to indictment (1) therefor 
as towns neglecting to keep their highways in repair. — id. 
s. 8. 



266 SPECIAL PROVISIONS EELATING TO HIGHWAYS. 

(1) And will also be liable to an action for special damage, if sustained by the traveler, 
for the bridge is insufficient. 

9. Covered bridge to be lighted. Every covered bridge 
on a highway, within one-half mile from which bridge there 
are living one hundred inhabitants, and every covered toll- 
bridge, shall be suitably lighted by the town or proprietors 
from dark till ten o'clock in the evening of each day. — id. 
s. 9. 

10. Penalty for neglect. The selectmen or proprietors 
neglecting to comply with the requirements of the preceding 
section shall be fined (1) not exceeding ten dollars. — id. s. 
10. 

(1) In addition to this, the town will be liable for special damage as for other defects < 

11. For removing lights. Any person unlawfully re- 
moving or injuring any lamp or fixture, or extinguishing 
any light used for lighting such bridge, shall be fined not 
exceeding ten dollars, and shall be liable to the town or 
proprietors for all damages occasioned thereby. — id. s. 11. 

12. Railroad crossings, etc. Railroads having for their 
principal object the public accommodation, the proprietors 
thereof shall be bound to provide crossings, stations, and 
other facilities for the public, and to make gates, crossings, 
cattle-passes and other facilities for owners of land divided 
thereby or separated from any highway. — Gen. Sts. p. 307, 
c. 147, s. 1. 

13. Railroad passes. If the track of any railroad is 
nine feet or more above any highway crossed by it as it 
was used when the railway was located, the proprietors 
thereof, within four months after notice by the selectmen, 
shall construct and afterward maintain a suitable pass for 
said highway under their track, at least ten feet in height 
above the traveled path and below the lower part of the 
timbers supporting the railway; and, on failure so to do, 
shall forfeit one hundred dollars for each month's neglect, 
for the use of the town. — id. s. 2. 

14. Bridging. Any town, in any other case, may, by 
vote, require the proprietors of any railroad to secure the 
crossing of any highway by said railroad, by a bridge, or a 
pass under said way, or by gates on both sides of said 
railroad. — id. s. 3. 

15. Penalty for neglect. If the proprietors of said rail- 
road shall not construct such bridge, ass or gates to the 



SPECIAL PROVISIONS RELATING TO HIGHWAYS. 267 

satisfaction of the selectmen, within six months after notice 
of said vote, they shall forfeit one hundred dollars for each 
month's neglect, unless they shall make application to the 
supreme court for a decision as hereinafter provided. — id. 
s. 4. 

16. Petition to court. The proprietors of such rail- 
road, within thirty days after notice of such vote, may 
apply by petition to the supreme court, for an examination 
of the crossing and a decision as to the propriety of such 
change ; and notice thereof being given to the town, the 
petition may be referred to the county commissioners. — id. 
s. 5. 

17. Commissioners. The county commissioners, after 
notice, examination and hearing, as required in case of 
highways, shall report whether the gates, pass or bridge 
required by the town is necessary, and if not, what is nec- 
essary to be done for the public security. — id. s. 6. 

18. Order by court. Upon such report the court shall 
make such order as to such crossing as they may deem 
necessary. — id. s. 7. 

19. Leave to construct. Whenever the proprietors of 
any railroad deem it necessary for the public safety that 
any intersection of their road with a highway shall be se- 
cured by a bridge, gates, or a pass, they may petition the 
supreme court for authority to construct the same ; and 
thereupon the same proceedings shall be had as provided 
in the preceding sections. — id. s. 8. 

20. Land taken. If the land of any person is alleged 
to be necessary for the construction of any pass or bridge, 
notice of such hearing shall be given to the owner thereof 
by the commissioners, and, after hearing, they may set off 
so much of said land as they deem necessary, and appraise 
the damages ; upon payment or tender of which the pro- 
prietors of the railroad may use said land for that purpose. 
—id. p. 308, s. 9. 

21. Assessment of damages. Upon application of any 
owner of land who has sustained damage by the erection of 
any such gate, pass, or bridge, his damages may be as- 
sessed in the manner provided in the preceding section. — 
id. s. 10. See ante,y. 235, s. 36. 

22. By jury. Any party dissatisfied with the damages 
awarded by the county commissioners may have his dam- 



268 SPECIAL PROVISIONS RELATING TO HIGHWAYS. 

ages assessed by a jury, upon appeal, as in the case of 
highways. — id. s. 11. See ante, p. 235, s. 59. 

23. Judgment and execution. Upon every report of the 
commissioners, the court may render such judgment as the 
case may require, and in proper cases issue execution for 
any damages and costs by them adjudged. — id. s. 12. 

24. If order not obeyed. If the proprietors of such 
railroad do not comply with such order, they may be fined 
not exceeding one thousand dollars, and may be restrained 
from using said road, by injunction, till the order is com- 
plied with. — id. s. 13. 

25. Incidental damages. The proprietors of every 
railroad shall be liable for all damages done to the owner 

. of any property upon or near said railroad, in constructing 
or maintaining their railroad, or in altering any highway, 
turnpike, bridge, or private way, or by causing any obstruc- 
tion or injury to any highway ; but no action shall be com- 
menced therefor until after sixty days' notice. — id. s. 18. 

26. Assessment of. The county commissioners, upon 
application within said sixty days, after notice, hearing, 
and examination, shall order any change to be made in 
said railroad, or any highway, or other way connected 
therewith, and set off necessary land for the same, and 
award damages to all persons injured or to be injured by 
said railroad or the changes of such ways made or ordered. 
— id. s. 19. See ante, s. 21. 

27. Effect of payment. Upon making the changes so 
ordered, payment of the damages so awarded and the costs 
allowed by the commissioners, and filing in the clerk's of- 
fice of the supreme court a certificate of one of the com- 
missioners that the changes ordered by them have been 
made, the liability of the proprietors of the railroad shall 
cease. — id. s. 20. 

28. Cattle guards, etc. The proprietors of every rail- 
road shall erect and maintain a sufficient fence on each 
side of their road, except at the crossing of public high- 
ways, and at every such crossing shall construct and main- 
tain on each side of such highways such cattle guards and 
fences as will prevent cattle from passing upon their road. 
—Laws of 1868, c. 1, s. 43. 

29. Speed of engines. No proprietors of a railroad 
shall run their engine, cars or train at a greater speed than 



SPECIAL PROVISIONS RELATING TO HIGHWAYS. 269 

six miles an hour across any highway in or near the com- 
pact part of any town. — Gen. Sts. c. 148, s. 4, as amended 
by s. 42, c. 1, of the Laws of 1868. 

30. Shifting cars. No such proprietors shall pass and 
repass any highway with their engines or cars for the pur- 
pose of shifting off cars or trains, without license of the 
selectmen of the town, and under such restrictions and 
regulations as may be therein prescribed, under pen- 
alty of twenty dollars for each offence. If on application 
therefor such license shall be refused by the selectmen, 
such proprietors may appeal from their decision to the 
railroad commissioners, who, after notice and hearing, for 
good cause shown, may grant such license. — id. s. 5. 

31. Petition and hearing. Such license shall be granted 
only upon application therefor in writing, after due notice 
to all parties interested, and a hearing thereon, and may 
be revoked for good cause, after like notice to the pro- 
prietors. — id. s. 6. For order of notice, &c, see ante, p. 
94, s. 12. 

32. Aqueduct and gas-light companies. Every aque- 
duct and gas-light company duly organized, and every per- 
son, is empowered to enter upon and break ground and dig 
ditches in any street, highway, or common, through which 
it may be necessary for the pipes, logs or other material 
for conveying water or gas of such aqueduct or gas-light 
company or person to pass, for the purpose of placing such 
pipes, logs or other material as may be necessary, or of 
repairing the same, doing no injury to such street, high- 
way or common ; the consent of the selectmen of the town 
or board of aldermen of the city in which such pipes, logs 
or other material are to be laid being first obtained there- 
for. Laws of 1868, c. 1, s. 40. 

33. Malicious injury to. Any person who shall wan- 
tonly and maliciously injure any aqueduct, or the pipes, 
logs, or other property of any gas-light company, aque- 
duct company or person, shall be fined not exceeding three 
hundred dollars, and be liable to pay treble damages to 
such gas-light company, aqueduct company or person, in 
an action on the case. — id. s. 41. 



TITLE VI. 



SCHOOLS. 

CHAPTER XLVIL— School Money. 

CHAPTER XL VIII.— School Districts. 

CHAPTER XLIX.— Meetings and Officers of School District. 

CHAPTER L.— School-Houses. 

CHAPTER LI.— School Committees and Teachers. 

CHAPTER LII.— High Schools. 

CHAPTER LIII.— Scholars. 

CHAPTER LIV.— Board of Education. 



CHAPTER XLVIL 



SCHOOL MONEY. 



Amount required by law, s. 1. 

Districts may raise more, s. 8. 

How applied and to whom paid, s. 3, 
s.4(2). 

Towns may raise more, s. 2. 
College grant, money of, s. 13. 
Guardian and ward, s. 5. 
Literary fund, ss. 9-13. 



Railroad tax, ante, p. 205, s, 7. 
Remedy against prudential committee, 
7. 
Against selectmen, s. 6. 
Selectmen to apportion money, ss. 4, 6 
State lands, proceeds of, s. 14. 
Unincorporated places, ss. 10, 11. 
Wentworth's location, s. 13. 



1. Amount required by law. The selectmen in each 
town shall assess, annually, upon the polls and ratable 
estate taxable therein, a sum to be computed at the rate of 
two hundred and fifty dollars for every dollar of the public 
taxes apportioned to such town, and so for a greater or less 
sum. — Gen. Sts. p. 162, c. 77, s. 1. 

•2. Towns may raise more. The town, at any legal 
meeting for the purpose, may raise a sum exceeding the 
aforesaid, which shall be assessed in the same 



amount 
manner, 



-id. s. 2. 



SCHOOL MONEY. 271 

3. How applied. Such sum, when collected, shall be 
appropriated to the sole purpose of keeping an English 
school or schools within such town, for teaching reading, 
writing, English grammar, arithmetic, geography, together 
with such other branches of English education as are 
adapted to the advancement of the school, including the 
purchase of necessary fuel for the school, and occasional 
repairs, as specified in this title. — id. s. 3. 

4. The selectmen shall assign to each district a pro- 
portion (1) of the money thus assessed, according to the 
valuation of the district for the year, or in such other man- 
ner as the town, at the annual meeting, shall direct, and 
shall pay over the same to the prudential committee (2) of 
the district. — id. s. 4. 

(1) The power of the selectmen to apportion the school money is a continuing power, 
and a sura apportioned to a district that, is afterwards divided, may be apportioneu 
anew, so as to give to each of the new districts its just proportion. — 25 R. 34, 40. 

(2) The school money is not that of the district, nor is the district entitled to the 
custody of it — 23 Maine, R. 543, 545. The decisions in this state are conflicting. See 
Digest, p. 581, ss. 76, 85. 

5. Guardian and ward. When the guardian and ward 
reside in the same town, the selectmen shall assign the tax 
assessed upon the ward's personal property to the school 
district in which the ward lives and has his home. — id. s. 5. 

6. Rsmedy against selectmen. If the selectmen of any 
town neglect to assess, assign or pay over the school money 
as aforesaid, they shall pay for each neglect a sum equal to 
that so neglected to be assessed, assigned or paid over, to 
be recovered by action of debt, in the name and for the use 
of the district, by the prudential committee. — id. p. 163, s. 6. 

7. Against prudential committee. If the money so 
assigned and paid over to the prudential committee of any 
district is not expended by him according to law, he shall 
be fined a sum not less than the sum so unexpended or not 
legally expended, and not exceeding twice said sum, for 
the use of the district. — id. s. 7 ; Digest, p. 581, ss. 77, 84, 
85. 

8. Any district may raise money for the support of 
schools in addition to the tax required by law. — Gen. Sts. 
p. 165, c. 78, s. 18. 

9. Literary fund. The treasurer shall assign and dis- 
tribute, in June annually, the literary fund among the 
several towns and places, according to the number of schol- 



272 SCHOOL MONEY. 

ars of such towns and places, not less than four years of 
age, who shall, by the report of the superintending school 
committee of the several towns and places returned to the 
secretary for the year . preceding, appear to have attended 
the district common schools in such towns and places for a 
time not less than two weeks within that year. — Gen. Sts. 
p. 176, c. 85, s. 5 ; Digest, p. 581, s. 77. 

10. No unincorporated place shall receive such portion 
until a treasurer or school agent shall have been chosen, 
to receive and appropriate the same in the manner herein- 
after directed. — id. s. 6. 

11. How applied. The money received by any town or 
place shall be applied to the maintenance of common 
schools, or to other purposes of education, in addition to 
the sums required to be raised by law, and in such manner 
as the town shall direct. — id. s. 7. 

12. Misapplication. If any town or incorporated place, 
or the agent of any unincorporated place, shall apply any 
sum of money so received to any other purpose than as 
aforesaid, the town, place or agent so offending shall refund 
double the sum so misapplied. — id. s. 8. 

13. College grant, etc. The treasurer, in the month 
of June annually, shall pay the literary fund assigned to 
the Second College Grant and Wentworth's Location to the 
prudential committee or agent of said Grant and Location, 
when duly authorized by the inhabitants therein, which 
shall be applied to the maintenance of common schools. — 
id. p. 177, s. 9. 

14. State lands. By act of July 3, 1868, the proceeds 
of the sale of the state lands are set apart as a school fund, 
the animal income thereof to be applied to the purposes of 
common school education as the legislature may from time 
to time determine. — Laws of 1868, p. 153, c. 21. 



SCHOOL DISTRICTS. 



273 



CHAPTER XLVIII. 



SCHOOL DISTRICTS. 



Adjourned meeting, s. 28 (a). 
Adjoining school districts, 

In the same town, ss. 4, 8, 35. 

In different towns, ss. 4-18. 

School money in each town, s. 17. 

Taxes upon union districts,ss. 17, 22-24. 
Agents, personal liability of, s. 27 (a). 
Apportioning property and debts, ss. 21, 
22. 

Form, of apportioning, ss. 10 (a), 11 (a). 
Certificate of clerk to selectmen, ss 30, 

31. 
Clerk, to certify money rate, ss. 30, 31. 

Not answerable for correctness of cer- 
tificate of vote, s. 31. 
Corporations, school districts are, s. 26. 
Districts, how formed, ss. 1, 4, 5, 15. 

How divided, ss. 1-9. 

How restored, ss. 4, 9, 14. 

How united, ss. 4-9, 14, 15. 

Members of cannot appear, etc., s. 26 
(e). 

"When deemed legal, ss. 25, 37. 
Districts, de facto, s. 3 (a). 
Division of districts, ss. 1-9, 16, 19, 20. 

Must be territorial, s. 1 (b). 

Must include the whole town, s. 1 (c). 

Record of, necessary, ss. 1, 5, 12. 

Votes for, forms of, ss. 1 (d), 6-8. 
Existing districts, continued, ss. 3, 3 

(a). 
Insuring school-houses, s. 29. 



Lines of districts changed, 

By committee and selectmen, ss. 5, 18- 
20. 

By concurring votes, ss. 4-8. 

May be restored, ss. 4, 14. 
New districts, how formed, ss. 1-19 
Organization, when presumed, s. 25. 

Is necessary for protection of select- 
men, s-. 31. 

Subsequent to suit, effect of. s. 25 (a). 
Property and debts, apportioned, ss. 
21, 22. 

Form of apportioning, ss. 10(a), 11(a). 
Recording proceedings, ss. 11, 12. 
Reconsideration, effect of, s. 28 (a). 
School districts, powers of, ss 4. 26, 27. 

Holding property in trust, s 26(b), (c). 

Raising money, ss. 29, 30, 36. 
School-houses, in union districts, s. 35, 
36. 

Insuring school-houses, s. 29. 
Scholars, division of, ss 33, 34. 

From out the district, s. 32. 
Selectmen, liabilitv of, ss. 28 (a), 31, 32. 
Tax upon school district, ss. 21-24, 28, 28(a). 
Town, mav divide into districts, s. 1, s. 1 
(a),(b) 

Is one district, if not divided, s. 2. 
Union districts, ss. 4-22. 
Union schools and school-houses, ss. 35, 

36. 
Votes, to be proved by record, s. 26, {•!). 



1. Towns may divide, when. Towns not divided into 
school districts may be so divided by vote of the townf dis- 
tinctly defining each district by suitable boundaries duly 
recorded. — Gen. Sts. p. 163, c. 78, s. 1. 



(a) A division by a committee appointed by the town for that purpose is not suffi- 
cient without a vote adopting their report. — 3 R. 168; 32 R. 129; 7 Met. 218. And our 
statute seems to require that the report should be recorded, although it is otherwise 
in Massachusetts (3 Allen, 409), in order that the boundaries may appear upon the 
record. 

(b) A division of a town into school districts must be territorial, as extending to a 
certain highwav, or bv other monuments, and not merelv by the names of owners 
or occupants.— i3 R. 139; 12 Pick. 206; 7 Met. 218; 7 Gray ,"244. But if a division by 
sufficient boundaries has been recorded, a subsequent division, which refers to it as re- 
corded for the boundaries, mav be sufficiently certain, although the first division was 
for other reasons invalid.— 32 R.118, 129. 

(c) It is also held that tlie division must include the whole town.— 11 Grav, 433; 4 do. 
46; 4 Cush. 250; 12 Pick. 206. 

A town line cannot be settled by the acts of adjoining owners.— 25 Vt. 645. 

Reconsideration 8 Cush. 66. 

(,d) The article in the warrant may be : 

" To act upon the subject of dividing the town in to school districts." 

The form of the division may be : 

" Voted, to divide the town into school districts, to be bounded, known and 

and called as follows : School District, No. 1— beginning at the northeast corner of the 

farm of , thence, etc., etc., [giving metes and bounds]. School District, No. 

2— beginning at, etc., etc. 

18 



274 SCHOOL DISTRICTS. 

2. When town shall be a district. Any town not 
divided into districts, or in which all the districts may be 
re-united, shall be a district; but its business relating to 
schools may be transacted in town meeting. — id. s. 2. 

3. Existing districts. All existing districts, however 
organized, shall continue to be such, subject to be altered 
or discontinued according to existing laws. — id. s. 3. 

(a 1 * Perhaps this section applies to districts existing de facto only, as well as to those 
that have a legal existence.— 18 R. 268; Digest, p. 577, s. 2: 9 Siiepley, 564; but see 4 
Gushing, 250. 

4. Districts may change lines. The lines of districts 
may be changed, and adjoining districts in the same or dif- 
ferent towns may be united, by concurrent vote of the dis- 
tricts interested, upon such terms as they may agree ; and 
in like manner the original lines and districts may be 
restored. — id. s. 4. 

5. Committee, etc., may change lines. The school com- 
mittee and selectmen of any town divided into districts, 
upon petition of persons interested, after hearing the par- 
ties, may change the lines of adjoining districts, and may 
constitute new districts, or unite the whole or part of any 
district to an adjoining district, a majority of each board 
concurring therein, and their decision in writing being 
recorded on the town records. — id. p. 164, s. 9. 

6. An article in the warrant, under s. 4, ante, may be : 
" To act upon the subject of uniting with school district 

No. , [ (1) in the town of ,] to form one school 

district, and to appoint any committees for that purpose." 

(1) If both districts are in the same town, omit this. 

7. An article for a change op the district lines may be : 
" To act upon the subject of changing the line between 

said district and school district No. , [ (1) in the 

town of ,] and to appoint any committees for that 

purpose." 

(1) Sees. 6(1). 

8. The subsequent proceedings, under s. 6, ante, may be : 
" Voted to appoint a committee to confer 

with any committee that may be appointed by school dis- 
trict No. , [ (1) ill the town of ,] upon the sub- 
ject of a union of said districts, and report to this meeting 



SCHOOL DISTRICTS. 275 

[at the time and place to which the same may be 
adjourned]. 

[ (2) Voted to adjourn this meeting until the day of 

, instant, at o'clock in the noon, at the 

school-house of this district] . 

" We, the undersigned, committees respectively of school 
district No. , in the town of , and school dis- 
trict No. , in the [said] town of — : , having fully 

considered the matter referred to us, recommend that said 
districts be united to form one school district, upon the fol- 
lowing terms of union : [Insert the terms of union, making 
full provision in relation to debts, property, etc.] 

Witness our (3) hands, this day of , 18 — . 

( Committee of 

ZZ~Z ] School Dist. 

( No. — ,in . 

( Committee of 

^^ ] School Dist. 

/ No. — ,in . 



" Voted to accept the joint report of 



, committees, respectively, of this school district 

and school district No. , in the town of , and 

that said districts be hereby constituted one school district 
upon the the terms recommended in said report." 

(1) Sees. 6(1). 

(2) In case there is an adjournment. 

(3) A vote accepting and adopting the report of a major part will be valid, though 
there may be a minority upon the committee who do not concur, since the report is 
advisory and not final. 

Proceedings for changing the line may be similar, except 
that the report should describe the new lines by metes and 
bounds. 

9. The school committees and selectmen of adjoining 
towns, upon petition of persons interested, after hearing the 
parties, may unite the whole or parts of adjoining districts 
in such towns into one district, and upon like proceedings 
restore them to their former position. — id. p. 163, s. 5. 

10. The form op a petition under s. 9, ante, may be : 

To the School Committees and Selectmen of the towns of ; 

The undersigned, residing upon the territory included in 
school district No. 6, in the town of , and school dis- 



276 SCHOOL DISTRICTS. 

trict No. 9, in the town of , believing that their in- 
terest (1) and the public good will be promoted thereby, 
pray that after due notice and hearing you will unite said 
districts into one district and (a) make an equitable ap- 
portionment of the property and debts of said districts, and 
find the balance, if any, equitably due from either of said 
districts to the other, and order the payment thereof within 
a time to be by you limited. 

(b) Dated this — day of , 18 — . 

[Signers.] 

Order of notice upon both districts and service and return. 
See ante? pp. 95-6, s. 13. 

(1) The particular interest need not be stated. — 34 It. 315; Digest, p. 577, s. 9. 

11. The final order, signed by a majority of the com- 
mittee and a majority of the selectmen of each town, after 
proceeding as in s. 14, p. 96, ante, to the word oath, may 
be: 

We are of opinion that the interest of the petitioners and 
the public good will thereby be promoted, and we therefore 
unite said districts into one district, to include the whole 
territory (a) of both districts. We also make an equitable 
apportionment of the property and debts of said district as 
follows : The school-houses and fixtures and apparatus ap- 
pertaining to the same, heretofore belonging to either of said 
districts, shall be the property of said new district ; the 
debts now outstanding shall be paid by the district contract- 
ing the same, and district No. 6 shall pay to said district 

No. 9 the sum of dollars* within days, which sum 

we find equitably due from said district No. 6 to said dis- 
trict No. 9. Each of said districts shall collect and retain 
to its own use all debts now due to the same. 

Given under our hands this — day of , 18 — . 



School Committee of 

Selectmen of . 

' | School Committee of 
' [ Selectmen of- — -. 



SCHOOL DISTRICTS. 277 

Recording in both towns as in ante, p. 96, s. 14 (c), (d). 

12. Report and record. In all such cases a majority of 
the school committee and a majority of the selectmen, of 
each town, must concur, and a record of the proceedings 
must be made in the books of each town, or their action 
shall be without effect. — Gen. Sts. p. 163, c. 78, s. 6, as 
amended by s. 24, c. 1, of the Laws of 1868. 

13. Deemed in what town. Every district including land 
in different towns shall be deemed a district of that town in 
which most of the voters therein reside at its formation ; but 
the district may, by vote recorded in both towns, elect to 
which town they will belong. — Gen. Sts. p. 164, c. 78, s. 7. 

14. Form of petition, etc., to restore districts. 

To the School Committees and Selectmen of the towns of -: 



The undersigned, residing in the school district known as 

the district, formed by the union of school district No. 

6, in the town of , and school district No. 9, in the 

town of , believing that their interests and the public 

good will be promoted thereby, pray that after hearing the 
parties you will restore said districts to their former position, 
and that you will make an equitable apportionment of the 
property and debts of the districts affected by such proposed 
change, and find the balance, etc. [as in (a) s. 10, ante]. 

Order of notice, etc., as in s. 13. pp. 95-6, ante. 

Final order as in s. 11. ante, to the word " promoted " and then say, " and we there- 
fore restore said districts to their former position ; we also make an equitable appor~ 
tionmeut or' the property and debts to said districts affected by this change, as follows: 
[Here make an entire disposition of Hie property and debts of any and all of tke dis- 
tricts affected by the change, to find the balance as in (a) s. 11, ante.] 

Date, signatures and record, as in ss. 11, 12, ante. 

(1) When the union district does not include the whole of both districts, the order of 
notice should also be to the district or districts of which a portion only was taken, and 
all the proceedings varied accordingly. 

15. Proceedings to unite parts of districts in adjoining 
towns would be as in ss. 10 and 11, ante, except that the 
petition would ask " that parts of said district may be united 
into one district, to be bounded and described as follows: " 
[giving the boundaries] and the final order would state, 
that "we therefore unite parts of said districts into one dis- 
trict, bounded," etc. 

16. As if in but one town. The selectmen, school com- 
mittee and collector of the town to which such district may 
be deemed to belong, shall have the same powers in respect 
to such district as if the whole were in that town. — id. s. 8, 



278 SCHOOL DISTRICTS. 

17. School money op. Every district situate in two or 
more towns shall be entitled to its just proportion of school 
taxes, income of school funds and literary fund in each 
town, according to the valuation of persons and property 
taxable therein. — id. s. 13. 

18. A petition for a change op lines of districts in the 
same town may be as follows : 

To the School Committee and Selectmen of : 



The undersigned, residing upon the territory included in 
school districts Nos. 5 and 6 in said town, believing that 
their interest and the public good will be promoted thereby, 
pray that, after due notice and hearing, you will change the 
lines of said districts and annex to said district No. 5 a 
part of said district No. 6, described as follows : Beginning 
at [here give a definite description by metes and bounds 
and known monuments] , and that you make, etc. [as in (a) 
s. 10, ante]. 

Dated at said this — day of , 18 — . 

[Signers.] 

Order of notice upon both districts, service and return, as 
in s. 13, pp. 95-6, ante. 

The final order signed by a majority of each board, as in 
(a) s. 14, p. 96, to the word oath and then : 

We are of opinion that the interest of the petitioners and 
the public good will thereby be promoted, and we therefore 
change the lines of said districts by annexing to said dis- 
trict No. 5 a part of said district No. 6, described as fol- 
lows : Beginning' at [here describe by metes and bounds 
and known monuments (1)]. We also make an equitable 
apportionment etc. [as in (a) s. 11 ante]. 

Given under our hands at said this — day of , 

18—. 



School Committee of 
Selectmen of — . 



Recording and filing as ante, p. 96, s. 14 (c.) (d). 

(1) They have power to disregard the particular line prayed for, and also the wishes 
of a majority of the districts. — 34 R. 315, Digest, p. 577, s. 10. 



SCHOOL DISTRICTS. 279 

19. A petition for new districts in the same town may 
be: 

To the School Committee and Selectmen of the town of : 



The undersigned, residing upon the territory included 
in school district [or " districts "] No. — in said town, 
believing that their interest and the public good will be 
promoted thereby, pray that, after due notice and hearing, 
you will out of said territory constitute new school districts 
as follows : [describe the districts as desired with their 
proposed boundaries] and that you will make an equitable 
apportionment, etc. [as in (a) s. 10 ante']. 

Order of notice to all the districts interested, and service 
and return as ante, pp. 95-6, s. 13. 

Final order as in s. 14, p. 96, ante, to the word oath, and 
then : 

We are of opinion that the interest of tho petitioners and 
the public good will thereby be promoted, and we therefore 
out of said territory constitute new districts to be known, 
bounded, and described as follows : [here insert each with 
distinct boundaries] and we also make an equitable appor- 
tionment, etc. [as in (a) s. 11, ante]. 

Date, signature and recording as ante, p. 96, s. 14 (c), 

(d). 

20. A petition to unite the whole or a part of a district 
to an adjoining district, may be as in s. 18, to the word 
" pray," and then, " that after due notice and hearing you 
will unite the whole of said district No. — , or such part 
thereof as you may deem expedient, to said district No. — , 
and that you will make," etc., etc., [as in (a), s. 10, ante]. 

Order of notice, etc., as in s. 18, ante. 

Final order, as in s. 18, to the word " promoted," and 
then, " and we therefore unite the whole (1) of said district 
No. — , to said district No. — ; and we make," etc. [as in 
(a), s. 11, ante]. 

(1) If tlie whole is not annexed, tke part taken should be described by distinct boun- 
daries. 

21. Property and debts to be apportioned. The school 
committee or committees, and selectmen, by whom any 
district or districts in the same or in adjoining towns are 



280 SCHOOL DISTRICTS. 

divided or united, or the limits thereof in any way changed, 
shall make an equitable apportionment of the property and 
debts of the districts affected by such change (1), and find the 
balance, if any, equitably due from either of said districts, 
and order the payment of such balance within a time to be 
by them limited. — Laws of 1868, c. 1, s. 25. 

(1) This is to be done upon every change, however slight; but if the change is incon- 
siderable, the order may well be, that the property and debts of the districts shall 
remain as before, except as otherwise provided by the order. 

If no apportionment is made, the title remains as before. — 1 Allen, 49; 23 Pick. 68; 
48 Maine, 32. See 34 R. 323. 

22. Assessment of tax. If such balance shall not be 
paid within the time so limited, the selectmen of the town 
in which the delinquent district is situate, or deemed to be 
situate, shall, upon written application of the (1) prudential 
committee, or agent of the district entitled to the money, 
assess a tax for the amount upon the polls and estate in the 
delinquent district, and cause the same to be collected and 
paid to the district entitled thereto. — Laws of 1868, c. 1, s. 
26. 

(1) Sections 10, 11 and 12, of c. 78, Gen. Sts., are repealed by s. 27, of c. 1, of the LawB 

of 1868. 

The petition to the selectmen may be as follows : 
To the Selectmen of the town of : 

A W, prudential committee of school district No. — , in 
said town, respectfully represents that on the — day of 

last, school district No. — , in said town, was by the 

school committee and selectmen of said town duly ordered 
to pay to said school district No. — , the sum of dol- 
lars within days from that date, as the balance equita- 
bly due upon an apportionment by them of the property 
and debts of said districts, and which sum has not been 
paid although the time limited for its payment has now 
past. 

Wherefore he requests you to assess a tax for the amount, 
upon the polls and estate in said delinquent district, and 
cause the same to be collected and paid to said district 
No. — . 

Dated at said , this — day of , 18 — . 

, Prudential Committee. 

23. Notice of such petition is unnecessary ; the right to 



SCHOOL DISTRICTS. 281 

assess and collect the tax being dependent upon a proper 
application, and non-payment, and upon the legality of the 
previous order. 

24. Upon whom assessed. If the limits of the delinquent 
district have been changed, the assessment should be upon 
the polls and estate within its limits as changed. Districts 
that have been united may, for the purpose of assessing a 
tax ordered to be paid by either to the other, be considered 
as continuing with their original limits. See s. 87, post. 
But a new district, formed from two or more, may have been 
ordered to pay a certain sum to one of the old districts, and 
in such a case the tax should be assessed upon the new 
district as a whole. 

25. Districts presumed legal. School districts that 
have exercised (1) the privileges of a district for a year 
shall be presumed to be legally organized. — Gen. Sts. p. 
164, c. 8, s. 14. 

(1) It is presumed that this provision is prospective, and applies whenever the year 
has elapsed.— 46 Maine, 206; 52 do. 522. 

(a) It has been held in Mass. that a legal organization pending a suit in the name of 
the district will enable the districts to ratify the suit.— 23 Pick. 62. 

26. All districts legally organized shall be corpo- 
rations with power to sue and to be sued, to hold and dis- 
pose of real and personal property for the use of the schools 
therein, and to make necessary contracts relating thereto, 
—id. 

(a) School districts, being enabled by law to sue and be sued, have, in consequence, 
the power to appoint and instruct agents to prosecute and defend; and may lawfully 
instruct them to withdraw defences and to confess judgment. — 17 R. 492; 43 R. 181; 
Digest p. 201, s. 155. 

(b) They have the powers expressly given to them, and such implied powers as are 
necessary to enable them to perform their duties, and no more. — Bell, <f., 28 R. 62. 

(c) A school district cannot hold lands in trust for the support of the ministry, since 
the object is foreign to the purposes of its creation — 35 R. 456; but may for schooling. 
—19 Vt. 210. 

(d) Votes of school districts are to be shown bv the record or a copv. — Digest, p. 201, 
s. 15>; 4 Greenl. 44; 12 Met. 105; 21 Pick. 75; 38 Maine, 164; 17 Vt. 337. 

(e) Inhabitants of a school district as individuals have no right to appear in an 
action against the district. — 10 Met. 462. But they may proceed in chancery against 
the district or others in a proper case. — Digest, p. 133, s. 115. And it has been held 
that such an inhabitant mav make a tender to a creditor of the district, because of his 
ultimate liability.— 11 Maine, 188 ; 10 Met. 462. 

27. Any district may hire money for building their 
school-houses, not exceeding four-fifths of the cost thereof, 
which shall be payable within five years, in equal portions, 
with the interest. — id. s. 15. , 

(a) Officers and agents signing their own names to a note for a school district, will, if 
not duly authorized to bind the district, be personally liable as promissors upon the 
note, provided the note, after rejecting what they had no authority to put there, im- 



282 SCHOOL DISTRICTS. 

ports a personal undertaking; and this may sometimes occur, when they had no in- 
tention to be personally bound.— 44 R. 196; Digest, p. 25, ss. 137, 138. If it is under- 
stood that they are nut to be answerable if they fail to bind the district, the note may 
be in this form: 

"School district No. 6, in Warren, promises to pay," etc., and the note be signed, 
"School District No. 6, in Warren," by A B, etc.— 26 R. 352; Digest, p. 25, s. 140. 

A person taking a note in this form ought to be satisfied of the legality of the pro- 
ceedings of the district. 

28. Annual tax. The selectmen, on application of the 
creditor, and on the filing of a copy of the vote and note of 
the district, may, in each annual tax, assess on the district 
one-fifth of such debt and the interest, and cause the same 
to be collected and paid to the town treasurer, who shall 
pay the same on demand to the creditor. — id. s. 16. 

(a) There can be no assessment if the vote has been reconsidered, (although at an 
adjourned meeting or upon a new call,) and the selectmen certified of the fact. — Di- 
gest, p. 579, ss. 38-41; 2 Cush. 419, 426; 6 Met. 497, 509; 13 Allen, 163; 4 Mass. 230. 

29. Insurance. Any school district may procure its 
buildings and property to be insured against fire, and raise 
money therefor, and by their agent give their premium 
note ; but no part of the school money required to be raised 
by law shall be taken to pay for insurance. — id. s. 17. 

30. Any district may raise money for the support op 
schools, in addition to the tax required by law, and to pay 
debts of the district, which, on certificate by the clerk, shall 
be assessed and collected as other school taxes. — id. p. 165, 
s.18. 

31. Effect of certificate. The certificate of the clerk 
will not protect the selectmen unless the district was 
legally constituted, or comes within s. 14, p. 228, post, or s. 
25, ante, nor unless the meeting was legally called, and the 
vote sufficient in form and authorized by law. — 42 R. 102 ; 
45 R. 385 ; Digest, p. 578, s. 36 ; 4 Gray, 42 ; 10 Cush. 418. 

Nor is the clerk, if he has acted in good faith, liable for 
falsely certifying that the vote was passed " at a legal meet- 
ing." — 17 Pick. R. 208. The selectmen should therefore 
look into the proceedings of school districts before assessing 
a tax for any purpose, and ascertain if they have been legal. 

When vote has since been reconsidered — see (a), s. 28, 
ante. 

32. Scholars from out of the district. Each district 
may determine upon what terms scholars from other (1) 
districts or towns may be admitted into their schools. If 
the district neglect to make such determination the pru- 
dential committee may do it. — id. s. 19. 



SCHOOL DISTRICTS. 283 

(1) A temporary residence, merely for the purpose of atteiiding the school, gives no 
right to attend against the will of ttie district.— 23 R. 507; Digest, p. 581, s. 78. 

33. Scholars divided. Any district may, by vote or by 
a committee, divide the scholars according to their age, 
acquirements and residence, or either, and direct under 
what teachers they shall be instructed. — id. s. 20. 

34. By committee. If a district refuse or neglect to 
make such division, it may be made by the school commit- 
tee. — id. s. 21. 

35. Union schools. Two or more contiguous districts 
in the same or different towns, may, by concurring votes, 
unite in the support of their schools, and the school money 
of such districts may be expended in the support of schools 
kept in either district, agreeably to such votes. — id. s. 22. 

An article for such purpose may be : 

" To see if this district will unite with district No. — , 

in the town of — , in the support of schools, and will 

expend the school money of this district for that object, 
and appoint any committee for such purpose." 

The vote may be : 

" Voted, that it is expedient to unite with district No. — , 

in the town of , in the support of schools, and that 

be a committee to agree with any committee that 

may be appointed by said district, upon a plan by which the 
school money of said districts shall be expended for that 
object, and report to this meeting, etc. 

The joint report, as in s. 8, ante, being accepted and 
adopted and recorded in each district, will consummate the 
union. 

36. And school-houses. While such schools are so 
united, either district may raise money to build, repair or 
remove school-houses and their appurtenances in either 
district. — id. s. 23. 

37. Districts continued, how long. Every school dis- 
trict shall remain a body corporate so long as is necessary 
for. the purpose of maintaining and defending suits, receiv- 
ing and conveying property, voting taxes to pay its debts, 
and settling its concerns. — id. s. 24. See s. 21, ante. 



284 



MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 



CHAPTER XLIX. 



MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 



Adjourned meetings, s. 22 (1). 
amendment of records, s. 23 (c). 
Annual meeting, warrant tor, ss. 3, 6. 

When a justice calls, ss. 4, 8, 9. 
Board of teachers, by whom furnished, 

ss. 26, 26 (b). 
Certificate of posting warrant, ss. 

5, 7. 
Check-list, use of by districts, ss. 16, 17. 
Clerk, choice or appointment of, ss. 5 (1), 

19, 21, 24, 25. 
Duties of, ss. 22, 23. 
Possession of records by, s. 23 (c). 

Clerk, pro tempore, s. 21. 
Illegal meetings, s. 1 (a), s. 14, s. 14(a). 
Illegal voting, penalty for, s. 18. 
Justice to call meetings, etc., ss. 4, 8, 9, 

12, 13. 
Meetings legalized, s. 14. 
Moderator, choice of and duties, ss. 19, 

20, 21. 

Pro tempore, s. 21. 
Occasional repairs, s. 26, s. 26 (c). 



Posting warrant, ss. 2, 5, 7. 
Place of meeting, s. 6 (1). 
Prudential committee, s. 19. 

Acting prudential committee, s.!4(a). 

Appointment of, ss. 24, 25. 

General duties of, s. 26, s. 26 (a), (b), (c 

May be dismissed, s. 27, s. 27 (a), (b), 
(c'j, (d). 

To call meetings, ss. 1, 3. 

To post check-list, ss. 16, 17. 

Ratifying proceedings, s. 1 (a). 
Record of district meetings, s. 23. 

How construed, s. 23 (c). 

May be amended, s. 23 (c). 
Records, custody of, s. 23 (d). 
Replevin for district records, s. 23 (d). 
Special meetings, ss. 3, 4, 10-13. 
Vacancies, and how filled, ss. ?4, 25. 
Voters in school districts, ss. 15, 18. 
Warrant, general form of, s. 6. 

By justice of the peace, ss. 9, 11, 13. 

Posting and return, ss. 2, 5, 7. 



1. Meetings how called. Meetings of school districts 
shall be warned by the prudential committee, by warrant 
addressed to the inhabitants of the district qualified to vote 
in district affairs, stating the time and place of meeting and 
the business to be acted upon. — Gen. Sts. p. 165, c. 79, s. 1. 

(a) The district can confer no authority except at a legal meeting.— 48 Maine, 32 ; 
42 R. 102, Digest, p. 578, s. 63. 

But it may at a legal meeting upon a sufficient warrant ratify and confirm the pro- 
ceedings of a previous meeting.— 38 Maine, 164; 4 Cush. 494. See s. 11, post. 

2. Posting warrant. Such warrant shall be served by 
posting a copy thereof, attested by the committee, at the 
door of the school-house, if there be any in the district ; 
otherwise at one or more public (1) places in the district, 
fourteen (2) days at least prior to the day of meeting. — 
id. s. 2. 

(1) See ante, p. 36, s. 10(c). 

(.2) There must be 14 days between the day of posting and the day of meeting. See 
ante, p. 5, s. 32. 

3. When to be called. The prudential committee shall 
issue his warrant for the annual meeting, and post a copy 
thereof, on or before the second Tuesday of March, and for 
special meetings, upon application therefor of three or more 
voters of the district, within ten days after such application 
is made. — id. s. 3. 



(1) He probably cannot call a special meeting upon his own motion or without an 
application. 



MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 285 

4. Justice may call. If the prudential committee neg- 
lect to issue a warrant for such annual or special meeting, 
and to post a copy thereof within the respective times limit- 
ed therefor, a justice, upon a like application (1), shall call 
such annual or special meeting, by issuing his warrant and 
causing an attested copy of it to be served in the manner 
before prescribed. — id. p. 166, s. 4. 

(1) It has been held that application maybe made to the justice and his warrant be 
dated within the ten days, provided it is not jjosted until after that time. — 17 R. 492. 
But see 44 Maine, 374. 

5. Certificate and return. The warrant with a certifi- 
cate thereon, verified by oath that a copy thereof was posted 
and at what time and place, shall be given to the clerk of 
the district, at or before (1) the time of the meeting (2), and 
shall be recorded by him in the records of the district. — 
id. s. 5. 

(1) And hence if there is no clerk an application should be made to the selectmen to 
appoint one. 

(2) Recording and filing may be in the forms given for town clerks; ante, p. 85, ss. 
42 (d), 44. 

6. A warrant when issued by the prudential committee 
may be : 

THE STATE OF NEW HAMPSHIRE. 

To the Inhabitants of School District No. — , in the town 
of , qualified to vote in district affairs. 

You are hereby notified to meet at (1) the school-house, 
in said district, on the — day of March instant, at — 
o'clock (2) in the noon, to act upon the following sub- 
jects : 

i. To choose a moderator for the ensuing year. 

ii. To choose a clerk for the ensuing year. 

in. To choose a prudential committee, not exceeding 
three, for the ensuing year. 

iv. To hear the reports of agents, auditors, committees, 
or officers heretofore chosen and pass any vote relating 
thereto. 

v. To choose agents, auditors or committees in relation 
to any subjects embraced in this warrant. 

vi. To see, etc. 

Given under my hand (3) at said , this — day 

of —,18-. J KJ 

— Prudential Committee. 



286 MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 

(1) Tliis implies that the meeting is to be within the walls of the school-house 13 

Maine, 466. 

(2) The hour of the meeting should be stated 17 Vt. 337, 16 do. 439. 

(3) A seal is unnecessary.— 21 R. 425; 2R. 390; Digest, p. 600, s. 118. 

7. The posting is to be of a copy attested as follows : 
A true copy of warrant. 

Attest : ■ , Prudential Committee. 

The certificate of posting upon the warrant may be : 
B- , 18 — . I certify that on the — day of 



18 — , I posted a copy of the within warrant attested by the 
prudential committee, at the door of the school-house in dis- 
trict No. — , in said town. 



H ss. , 18 — . Then made oath 

that the above certificate by him signed is true. 
Before me, 

, Justice of the Peace. 

8. An application to a justice to call an annual meet- 
ing may be : 

To , a Justice of the Peace of the county of ; 

The undersigned, legal voters (1) in school district No. — , 

in the town of , in said county, respectfully represent 

that the prudential committee of said district has neglected 
to issue a warrant and post a copy thereof for the annual 
meeting of said district for the year 18 — , and they there- 
fore request you to call such annual meeting and to insert 
in the warrant for the same, the following articles: [See s. 
6, ante.~\ 

Dated at said , this — day of , 18 — . 

[Signers.] 

(1) It lias been held in Maine that the application need not state tbat the signers are 
legal voters (20 Maine, 154), but it is deemed advisable that it so state. 

9. A warrant upon an application as in s. 8, may be : 

THE STATE OF NEW HAMPSHIRE. 

H ss. 

To the Inhabitants of School District No. — , in the town of 

, qualified to vote in district affairs : 

Pursuant to an application (1) of this date, by three or 
more legal voters of said district, to me a justice of the 
peace of said county, by reason of the neglect of the pru- 



MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 287 

dential committee of said district to call the annual meet- 
ing of said district for the year 18 — , you are notified to 
meet at, etc. (as in s. 6, ante.') 

Given under my hand this — day of , 18 — . 

, Justice of the Peace. 

(1) The warrant need not recite the previous application. — 28 Maine, 193. It has also 
been held that the application need not be recorded.— id. ; 20 Maine, 439; 20 Vt. 489. 
But as such an application is essential it is advised that the warrant show that such an 
application was made and also that the application be recorded with the warrant. 

10. An application for a special meeting may be : 

To , Prudential Committee of School District No. — , 

in the town of : 

The undersigned, legal voters in said district, request 
you to issue a warrant and post a copy thereof for a meeting 
of said district, to be holden at the school-house in said dis- 
trict, on the — day of next, at — o'clock in the 

noon, to act upon the following subjects : [Insert them.] 

Dated at said , this — day of , 18 — . 

[Signers.] 

11. A warrant for a special meeting may be asfollows: 

THE STATE OF NEW HAMPSHIRE. 

To the Inhabitants of School District No. — , in the toivn of 

, qualified to vote in district affairs : 

Pursuant to an application (1) to me of this date by 
three or more legal voters of said district, you are notified 
to appear at [here state the time, place and object of the 
meeting precisely as in the application (2)] . 

Given, &c. [as in s. 6, ante]. 

(1) See«?i/e, s. 9 (1). 

(2) A call, although within ten days, for a meeting, at a later date than the time 
named in the application, will not be sufficient to preventan application to a justice of 
the peace.— IT R. 492; Digest, p. 578, ss. 18, 19. 

12. An application to a justice for a special meeting 
may be : 

To , a Justice of the Peace for the county of : 

The undersigned, legal voters in school district No. — , 
in the town of , in said county, respectfully repre- 
sent that on the — day of last three or more legal 

voters (1) in said district made a written application to 
the prudential committee thereof to call a meeting of 



288 MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 

said district, a copy of which application is as follows : 
[Here insert a copy of the application including the names 
of the signers thereto.] Yet said committee has neglected 
to issue a warrant and post a copy thereof for such meet- 
ing, and more than ten days (2) have elapsed since said 
application. 

Wherefore the undersigned request you to call such 
meeting at the time and place and for the purposes stated 
in said application. 

Dated at said this — day of , 18 — . 

[Signers.] 

(1) The signers to both, applications need not be the same persons.— Digest, p. 388, s. 
67. 

(2) See ante, s. 11 (2). 

13. A warrant under an application as in s. 12, may be 
as in s..9, ante, substituting the word special for annual. 
See ante, s. 11 (2). 

14. Meetings legalized. All officers of all school dis- 
tricts in this state chosen on or after the fifteenth day of 
March, A. D. 1868, at any school meeting holden and noti- 
fied at least seven days before the clay of meeting, or under 
the provisions of the laws of this state as they were in 
force prior to the first day of January last, and their pro- 
ceedings under such elections, are hereby ratified and made 
valid (1). Provided, however, that this act shall apply 
to no case in which a subsequent election has been holden, 
or proceedings instituted in the premises. — Act of July 1, 
1868, taking effect from and after its passage. Laws of 
1868, p. 154, c. 23. 

(1) The effect of such legislation is that hereafter the proceedings will be deemed 
legal except as against vested rights at the time of the passage of the act.— 44 Maine 
350; 9. Mass. 360; ante, p. 12, s. 19 (1). 

(a) A meeting called by an acting prudential committee is, if in other respects 
correct, a legal meeting, although his election or appointment may have been defec- 
tive.— Digest, p. 499, II; 21 Pick. 75, 80; 35 Vt. 632. 

15. Voters. Any person qualified to vote in town (1) 
affairs may vote at any district meeting in the district in 
which he has resided and had his home one month next 
preceding. — id. s. 6. 

(1) This makes a six months' residence in the town, including one month in the dis- 
trict, necessary. See 44 R. 398 ; ante, pp. 49-54. 

16. Check-list. Upon petition of ten legal voters in 
any district, presented in January to the prudential com- 



MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 289 

mittee, he shall make, post and correct a list (1) of the 
legal voters in the district as selectmen are required to do 
(3) in regard to the list of voters in their towns ; and said 
list shall be used and checked at the election of officers 
and otherwise, at the annual meeting of the district, as 
such list may be used in town meetings. — id. s. 7. 

(1) The form, of the petition may be as follows : 

To , Prudential Committee of School District Ko. — , in the town of : 

The undersigned, legal voters in said district, request you to make, post and correct 

a list of the legal voters in said district, as selectmen are required to do in relation to 

lists of voters in their town. 
Dated at said , this — day of , 18 — . [Signers.] 

(2) For form of a check-list, see ante, p. 46, s. 14, making the necessary changes. 

(3) See ante, p. 36, s. 10 (c); p. 43, s. 1 (1). 

A posting at the school-house will ordinarily be sufficient. 

17. If any district, at an annual meeting, shall vote 
that a check-list shall be used at future meetings, such 
check-list shall be so made, posted and corrected, and used 
at all meetings while such vote remains in force. — id. s. 8. 

18. Illegal voting. If any person under the age of 
twenty-one years, or any alien not naturalized, or any per- 
son who has not resided and had his home in the district 
for one month and in the town six months preceding, shall 
vote in any district meeting, or if any person shall give in 
more than one vote for any officer voted for at such meet- 
ing, he shall be fined not exceeding thirty dollars, or im- 
prisoned not exceeding three months. — id. s. 9. 

19. The officers of a district shall be a moderator, a 
clerk, and prudential committee not exceeding three (1), 
who shall be chosen by ballot by a plurality of votes ; shall 
be sworn, and shall hold their offices for one year or until 
others are elected and qualified in their stead. — id. s. 10, 
as amended by s. 30, c. 1, of the Laws of 1868. 

(1) A district having chosen a prudential committee of one may choose additional 
members at an adjournment of the same meeting— 12 Met. 99; but not at a meeting 
called upon a new warrant. — 20 Vt. 487. 

20. The moderator of a school district shall have the 
like power and duty as a moderator of a town meeting to 
conduct the business and to preserve order (1), and may 
administer oaths (2) to district officers and others, when 
oaths are required in the district business. In case of a 
vacancy (3) or absence, a moderator may be chosen at any 
meeting. — id. s. 11. 

(1) See ante, pp. 55-57. 

(2) See ante, p. 77, ss. 6, 7. 

(3) See ante, p. 87. 

19 



290 MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 

21. Clerk and moderator pro tem. If, at any meeting, 
the moderator is absent, or if his office has become vacant, 
the clerk shall act as moderator until a moderator pro tem- 
pore shall be chosen ; and, if the clerk is absent, a clerk 
pro tempore shall be chosen ; and it shall not be deemed 
necessary to the choice of such officers pro tempore that an 
article shall have been inserted in the warrant for that pur- 
pose ; and the choice shall be by ballot and plurality of 
votes.— Laws of 1868, c. 1, s. 28. 

22. The clerk shall keep a true and attested record of all 
the doings of each meeting ; shall deliver (1) to the select- 
men a certified copy of every vote to raise money, within 
ten days ; shall make and certify copies of any votes, when 
required and payment therefor is tendered ; and shall have 
the same power to administer oaths as the (2) moderator. 
—Gen. Sts. p. 166, c. 79, s. 12. 

The certificate of the record of a vote should contain a 
copy of so much (2) of the record as shows the due organ- 
ization of the meeting and then a copy of the vote, and be 
attested by the clerk as a true copy from the record. Such 
a certificate, with a record made up as in s. 23, post, will be 
as follows : 

At a meeting of the legal voters of school district No. 

— , in the town of , on the — day of , 18 — , at 

the school-house in said district, at — o'clock in the fore- 
noon ; 

Voted to raise the sum of thousand dollars for 

building a new school-house and procuring land and suit- 
able furniture and apparatus and needful conveniences 
therefor. ***** 

A true copy of record. 

Attest : C T, Clerk of said district. 

It will be seen that the above corresponds with the parts 
(a) and (b) in s. 23, post. 

(1) The clerk is to certify a vote for raising money although the meeting may have 
adjourned to a time beyond the ten days. — 18 R. 317; Digest, p. 579, s. 40. 

If the vote is reconsidered, see ante, p. 286, s. 28 (a). 

(2) See ante, s. 20 (2). 

23. The record of a district meeting, the warrant and 
certificate of posting having first been recorded as in s. 7, 
ante, may be : 

(a) At a meeting of the inhabitants of school district 
No. — , qualified to vote in district affairs, at the school- 



MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 291 

house in said district, on the — day of , 18 — , at — 

o'clock in the noon. 

The meeting was called to order by , moderator 

[or " clerk " if such was the fact,] of said meeting, and 
the whole number of tickets given in for moderator was 
one hundred ; upon which 

A B had twenty votes, 

C D had thirty-five votes, 

E P had forty-five votes, and said E F was declared 
elected moderator, and in open meeting took the oath of 
office by law prescribed. 

FOR CLERK. 

The whole number of tickets given in was one hundred ; 
upon which 

B H had thirty votes, 

W had thirty votes, 

R S had forty votes, and was declared elected clerk by 
the moderator, and in open meeting took the oath of office 
by law prescribed. 

Voted, to choose a prudential committee of per- 
sons. 

For prudential committee the whole number of tickets 
given in was one hundred ; upon which 

A B had, etc. 

C D had, etc. 

(b) Voted to raise the sum of thousand dollars 

for building a new school-house and procuring land and 
suitable furniture and apparatus and needful conveniences 
therefor. 

[Here insert all other votes not before inserted, care be- 
ing taken to make the record an accurate and intelligible 
account of the entire proceedings of the meeting.] 

Voted to adjourn this meeting until the — day of , 

18 — , at — o'clock in the noon, at the school-house, 

in said district [or, " Voted that this meeting be dis- 
solved "]. 

A true record. 

Attest : R S, (1) Clerk of said District. 

(1) See ante, p. 64, (2). 

(c) The records of school districts, if intelligible, will be construed liberally to effect 
the objects in view.— 17 Maine 444; 38 do. 193, 203; 22 Vt. 339. See ante, p. 64, (6). 
The court will allow an amendment of the records in a proper case.— Digest, p. 37. 



292 MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 

(<i) The district has no right to the custody of its records as against the rightful 
clerk; but may maintain replevin therefor agaiust a stranger. — 44 Maine, 374; 21 Pick. 

148. 

24. If a vacancy (1) shall occur in the office of clerk 
or prudential committee, from any cause, the selectmen, 
upon application of one or more voters in such district, 
shall fill such vacancy ; and the officers thus appointed 
shall hold their offices until new ones are legally chosen 
and qualified. — id. s. 13. 

25. What is a vacancy. In case a justice (1) shall 
fail to call such annual meeting in the month of March, by 
issuing his warrant and causing an attested copy of it to 
be served, as is provided in chapter seventy-nine of the 
General Statutes, a vacancy shall be deemed to exist. — 
Laws of 1868, c. 1, s. 29. 

(1) The meaning of this act is not clear and further legislation may be necessary. 
See also as to vacancy, ante, p. 88, s. 3. 

An application to the selectmen may be as follows : 
To the Selectmen of the town of : 

The undersigned, legal voters in school district No. — , in 
said town, respectfully represent that there is a vacancy in 

the office of , in said district, and they request you 

to fill such vacancy. 

Dated at said this — day of , 18 — . 

[Signers.] 

The appointment may be as follows : 

To , of School District No. — , in the town of : 

Whereas there is a vacancy in the office of , in 

said district, and an application has been made to us by one 
or more legal voters of said district to fill such vacancy ; 
we, having confidence in your ability and fidelity, hereby 

appoint you of said district, and upon your taking 

the oath of office (1) and having this appointment and the 
certificate of said oath recorded (2) in the records of said 
district, you shall have the powers, perform the duties, and 
be subject to the liabilities of said office, and hold the same 
until a new officer is legally chosen and qualified. 

Witness our hands this — day of , 18 — . 

) Selectmen 

\ of 



(1) Pee ante, p. 77, ss. 6, 7. 

(2) See ante, s. 5 (2.) 



MEETINGS AND OFFICERS OF SCHOOL DISTRICTS. 293 

26. The prudential committee shall select and hire 
teachers for the district, provide them board, furnish neces- 
sary fuel, make such occasional repairs of the school-house 
and furniture as may be necessary, not exceeding in amount 
five per cent, of the school money of the district, notify the 
superintending school committee of the commencement and 
close of the schools, and give them such information and 
assistance as may be necessary for the performance of their 
duties. — id. p. 167, s. 14. 

(a) It has been held that the district is not liable to the teacher for his wages. — 16 R. 
510; Digest, p. 581, s. 80; but see 15 Pick. 35, 39, 11 do. 259. 

(b) The prudential committee as such derives his authority from the statute and not 
from the district, and the district cannot deprive him of the power to provide board for 
the teachers.— 45 R. 573 ; 32 R. 127. See also 20 Vt, 487. 

(c) The prudential committee cannot recover of the district for repairs unless au- 
thorized by the district. For occasional repairs, not exceeding the live per cent... he 
has a lien on the school money and also for board and fuel. — 31 R. 404 ; 37 R. 445, Digest, 
p. 580, ss. 64-67. 

27. Any member of a prudential committee may be dis- 
missed from office by the selectmen, by a written notice in 
hand or left at his abode, upon petition of one fourth of the 
legal voters of the district, alleging that he is incompetent, 
irresponsible, or mismanages the affairs of the district, upon 
four days' notice to the committee of such petition, and a 
hearing thereon. — id. s. 15. 

(1) The petition may allege either or all of the causes of removal or any two of them, 
and in the words of the statute. The selectmen may in their discretion order a specifi- 
cation. 

(a) The petition may be as follows : 

To the Selectmen of the town of : 

The undersigned, being one fourth of the legal voters in school district No. — , in said 
town, respectfully represent that , prudential committee of said district, mis- 
manages the affairs of said district [or "is incompetent," or "is incompetent and mis- 
manages the affairs of said district," or "is incompetent and irresponsible and 
mismanages the affairs of said district "] and they therefore request you to dismiss the 
said from his said office. 

Dated at said this — day of , 18—. 

[Signers.] 

(b) The order of notice, service and return may be as in s. 10, p. 93, ante, except as to 
the length of notice, and adding, if deemed expedient, an order for the specification of 
the charges. 

(c) The final order after proceeding to the word oath in s. 14, ante, p. 96, may be : 
We find that said does mismanage the affairs of said district [or whatever else 

may have been charged and found true] as alleged in said petition, and therefore order 
that he be removed from his said office. 

Date and signing and recording and filing (by the town clerk), as ante, p. 96, s. 14, 
(b), (c), (d). 

(d) Notice of dismissal may be as follows : 

To , Prudential Committee of School District No. — , in the town of : 

You are hereby dismissed from your office of prudential committee for the causes 

alleged in the petition of [naming some of the petitioners] and others. 

Witness our hands this — day of , 18—. 

' Selectmen 
of 



The original should be served as in s. 10, p. 90, ante, and the record made by the 
clerk of the district. 



294 



SCHOOL-HOUSES. 



CHAPTER L 



SCHOOL-HOUSES. 



Neglect to build school-house, ss. 

10 T 10 (a). 
Neglect to remove school-house, ss. 

10, 10 (b). 
Non-resident tax-list, s. 14. 
Over-estimate by selectmen, s. 10 (e). 
Private school, s. 1 (b). 
Raising money by district, ss. 1, 1 (c). 

For repairs before union, s. 1 (c). 
Ratification by vote only, s. 4. 
Selectmen, when liable, s. 12 (a). 
Trees and fences on school lot, s. 7 

(a). 
Where school shall be kept, s. 11. 



Assessment of school-house tax, ss. 
12, 13. 

Omission to tax, effect of, s. 12 (b). 
Betterments upon defective laying out, 

s. 9 (a). 
Building committee, s. 4. 
Hall, when district may provide, s. 1 (a). 
Illegal assessment, effect of, s. 12 (a), 

(b), (c). 
Location of school-house, 

By committee of district, s. 3. 

By school committee, ss. 5, 6. 

By vote of district, s. 2. 
Land for school-house, s. 7. 

Petition to selectmen, etc., s. 8. 

Title of district, s. 7 (a), s. 9. 

1. Raising money for. Any district, at a legal meeting 
holden for the purpose, may raise money (1) for building, 
purchasing, renting, repairing or removing (2) such school- 
houses and out-buildings as the wants of the district require, 
procuring land, and providing suitable furniture and ap- 
paratus, and needful conveniences therefor. — Gen. Sts. p. 
167, c. 80, s. 1 ; Digest, p. 578. 

(1) The article in the warrant may be general, " To raise money for building," etc., 
following the words of the statute. The vote should be more specific, and under the 
general articles, ante, s. 6, v, p. 285, a building committee can be appointed. 

(2) It is no objection that the school-house was removed from another district, nor 
that it was left in a different shape and size from what it was before. — 39 Maine, 556. 

(a) The district may build with a hall for the occasional use of the district, the con- 
tractor reserving the right to the use at other times.— 6 Met. 498, 510. 

(b) It is held in Vermont that the district may authorize a private school to be kept 
in the school-house.— 37 Vermont, 497, 24 do. 28. 

(c) If a union district, it is no objection that the money voted is for repairs made before 
the union, provided the new district takes the benefit of them. — 34 R. 315; Digest, p. 
518, s. 35. But provision sJtould be made for such cases at the time of the union. 

2. The district may decide (1) upon the location of 
their school-houses, by vote, or by a committee appointed 
for that purpose, and purchase or procure land for the 
same, and may choose committees with powers to carry 
their votes into effect. — id. s. 2. 

(1) The district may locate by a major vote of those present and voting. — 38 Vt. 177. 

3. If the district locate by a committee, the vote may 
be : " Voted that A B, etc., be authorized to decide upon the 
location of said school-house and purchase or procure land 
for the same." This will make the action of the com- 
mittee final. 



SCHOOL-HOUSES. 295 

Or the vote may be : " Yoted that A B, etc., be a committee 
to examine and report upon the location of the school-house," 
and then a subsequent vote adopting their report will be 
necessary. See ante, p. 274, s. 8. 

In either case the report should be made in writing, and 
be recorded by the district clerk and kept on file. See p. 
285, s. 5 (2). The recording may not be indispensable, al- 
though useful to guard against loss. — 3 Allen, 409. 

A majority of the committee may act. — 35 B. 447 ; Di- 
gest, p. 578, s. 31. 

4. Building committee. No committee shall have power 
to bind the district beyond the amount of money voted (1) 
by the district, and the district shall not be bound by any 
act as a ratification of the doings of such committee beyond 
their authority, unless by express vote of the district at a 
meeting called for that purpose. — Gen. Sts. p. 167, c. 80, 
s. 3. 

(1) This section is new and is an important qualification of the decisions in resrect to 
a ratification in this and other states, some of which maybe found in 28 K. 58; 30 
do. 25; 25 do. 118; Digest, p. 20, s. 48; p. 579-80, ss. 53-56; p. 578, ss. 31-33; 2 Gush. 
419; 4 Cush. 494; 39 Maine, 220; 24 Maine, 349; 17 Maine, 316. 

A vote to raise a certain sum " towards purchasing land and erecting a school- 
house," was held not to limit the committee to the sum voted.— 39 Maine, 220. 

(a) A building committee cannot sue in their own names for the money if not paid 
over by the selectmen.— 10 It. 72; Digest, p. 580, s. 57. 

Suits by them for their own services and expenditures are to be several and not joint. 
Digest, p. 527, s. 103, p. 580, ss. 54-56. 

(b) A majority of the committee may act. — Digest, p. 578, s. 31. 

5. Location by school committee. If any three or more 
of the voters of a district are aggrieved by the location of 
any schooHiouse by the district or its committee, they may 
apply by petition (1) to the school committee, who shall 
hear and determine the location thereof. — id. s. 4. 

(1) The proceedings may be as follows: 
To the School Committee of the town of ; 



The undersigned, legal voters in school district No. — , in said town, respectfully rep- 
resent that a parcel of land described as follows [insert the description] has been 
decided upon by said district for the location of their school-house, and that such loca- 
tion is inconvenient for your petitioners, and they are aggrieved by the same, and they 
therefore request you to hear the parties and determine the location of said school- 
house. 

Dated at said this — day of , 18—. 

[Signers.] 

Order of notice, service and return as in s. 13, p. 95-6, mite. 

Final order, as ante, p. 96, to the word oath and then : " we find that the parcel of land 
described in said petition has been decided upon by said district for the location of 
their school-house, and that the petitioners, being three or more legal voters in said 
district, are aggrieved by such location, and we therefore determine that the location of 
said school-house shall be upon a parcel of land bounded and described as follows : " 
[Insert by metes and bounds.] 

Bate, signatures and recording as in s. 14 (b), (c), (d), p. 96, ante. 

If no change is made, the report, after proceeding to the word oath, may be: " we 
find that said petitioners are not aggrieved by the location oi'taid school-house, and we 
therefore make no change," etc. 



296 SCHOOL-HOUSES. 

6. If district do not agree. If at a meeting duly 
holden for the purpose the district do not agree upon a 
location for a school-house, or upon a committee to locate 
the same, the school committee, upon petition (1) of three 
or more voters, shall determine the location. — id. s. 5. 

(1) The proceedings may be : 
To the School Committee of the town of : 

The undersigned, legal voters of school district No. — , in said town, respectfully rep- 
resent that at a meeting of said district duly holden on the — day of last, to act 

upon the subject, the district voted to build a school-house, but failed to agree upon a 
location for said school-house, or upon a committee to locate the same, and said meet- 
ing adjourned without day; wherefore the undersigned request you to determine the 
location thereof. 

Dated at said this — day of , 18 — . 

[Signers.] 

Order of notice, service, etc., as in s. 13, (a) (b) (c), p. 95-6, ante. 

Final order, as in s. 14 (a), p. 97, ante, to the word oath, and then say : " we find 
that at a meeting duly holden to act upon the subject, the said district voted to build 
a school -house, but failed to agree upon a location for such school-house, or upon a 
committee to locate the same, as stated in said petition, and said petitioners are legal 
voters of said district ; we therefore determine that said location shall he at," etc. 
[Describe the lot by metes and bounds.] 

Date, signatures and recording, as in ante, p. 96, s. 14 (b) (c) (d). 

7. Selectmen to lay out. If the owner of the land 
designated as aforesaid for a school-house shall refuse to 
sell the same for a reasonable price, the selectmen, upon 
petition, may lay out a lot not exceeding half an acre, and 
appraise the damages to the owner, who shall have like 
remedy for increase of damages as if the same were laid 
out for a highway. — id. s. 6. 

(a) It seems (says Ch. J, Shaw upon a similar statute) that the owner of the land can- 
not remove trees and fences, as when land is taken for a highway. — 2 Gray, 414. See 
43 R. 503 ; Digest, p. 579. 

8. Proceedings under s. 7, ante, may be as follows : 

To the selectmen of the town of : 

School district No. — , in said town, represents that a 
lot of land not exceeding half an acre, and bounded and 
described as follows : [here insert the description,] and 

owned by , of said town, has been legally designated 

for a school-house lot, " by said district, by vote at a 
meeting duly holden for that purpose," [or, " by a commit- 
tee duly appointed by said district for that purpose ; " or, 
" by the school committee of said town," as the case may 
be,] and that said owner refuses to sell the same for a 
reasonable price ; wherefore said school district requests 



SCHOOL-HOUSES. 297 

you to lay out said lot and appraise the damages to the 
owner. 

Dated at said , this — day of , 18 — . 

School District, No. — , in 

, by H W, J W & C R, 

Agents duly authorized (1). 

Order of notice, service and return, as in s. 10, p. 93, ante. 

Final order, as in s. 14, p. 96, ante, to the word " oath," 
and then say: " we find that the lot of land described in said 
petition has been legally designated for a school-house lot, 

as stated in said petition, and that , the owner of 

said land, refuses to sell the same for a reasonable price ; 
and we therefore lay out said lot bounded and described as 
follows, [here insert the boundaries,] for a school-house 
lot, and appraise the damages to the said owner, at the sum 
of dollars." 

Date, signing, filing and recording by the town clerk, as 
in s. 14, p. 96, ante. 

(1) A committee to locate a school-house "and purchase or procure land for the 
same," may make the application to the selectmen in the name of the district and per- 
haps in their own name. — Digest, p. 21, ss. 58, 59, 64, p. 75, s. 19. 

When the district locates it should choose an agent "to procure the land for the 
school-house by purchase or appraisal." 

9. Effect of laying out. Upon payment or tender (1) 
of such damages, the land so laid out shall vest in said 
district, but shall revert to the owner whenever the district 
shall vote to discontinue the use thereof, or shall cease to 
use the same for a school-house two years successively. — id. 
p. 168, s. 7. 

(1) An entry without such payment or tender is a trespass. — 52 Maine, 144. See ante, 
s. 7 (a). 

(a) It is held in Massachusetts that if the proceedings for procuring a school-house 
lot do not conform to the statutes and the land is not legally taken, the district can- 
not have betterments. — 11 Gray, 40. But it is doubted if such a construction would 
be given to our statute if the district has held under a supposed legal title. 

10. Neglect to build, etc. If any district shall refuse 
or neglect to build, repair, remove or fit up a school-house, 
or shall refuse or neglect to build such school-house upon 
or to remove it to the lot designated as aforesaid, the select- 
men, upon petition of three or more voters of the district, 
after hearing the parties, may assess upon the district, and 
collect such sums of money as may be necessary, and there- 
with cause such school-house to be built, removed, repaired 
or fitted up. — id. s. 8 ; Digest, p. 579, ss. 42-44. 



298 SCHOOL-HOUSES. 

(a) Proceedings under the first clause of s. 10, ante, may be : 
To the Selectmen of the town of : 

The undersigned, legal voters of School District No. — , in said town, respectfully 

represent that on the — day of last the school -house in said district was destroyed 

by fire, and said district has unreasonably neglected to build a school-house, and the 
undersigned therefore request you to assess upon the district and collect such sums of 
money as may be necessary and therewith to cause a school-house to be built. 

Dated at said , this — day of , 18 — . 

[Signers.] 

Order of notice, service and return as in s. 13, pp. 95, 96, ante. 

The final order, after proceeding to the word " oath " ante, p. 96: "we find that the 
school-house of said district was destroyed as stated in said petition by said petition- 
ers, who are legal voters in said district, and said district has unreasonably neglected 
to build a school-house, and we therefore assess upon said district and order to be col- 
lected the sum of dollars, therewith to cause a school-house to be built." 

Date, signatures and recording as ante, p. 96, s. 14 (b),'(c), (d). 

If the neglect has been to repair, and tit up, the petition may allege that the school- 
house is, and for a long time has been, insufficient and in need of repair, and that the 
district has unreasonably neglected to repair and fit up the same, &c.,and the final or- 
der be changed accordingly. 

(b) Proceedings under the second clause of s. 10, ante, may be : 
To the Selectmen of the town of : 

The undersigned, legal voters of School District No. — , in said town, respectfully 

represent that on the — day of last, a parcel of land described as follows, [insert 

the description] was duly designated for the location of a school-house by a vote of 
said district [or, " by a committee duly appointed by said district for that purpose," or, 
" by the school committee of said town "] but said district has unreasonably neglected 
to build a school-house upon said lot [or " have unreasonably neglected to remove 
their school-house to said lot "], and the undersigned therefore request you to assess 
upon said district and collect such sums of money as may be necessary and therewith 
cause a school-house to be built upon said lot [or " therewith cause the school-house of 
said district to be removed to said lot "]. 

Dated at said , this — day of , 18 — . 

[Signers.] 

Order of notice, service and return as in s. 13, pp. 95, 96, ante. 

Final order as in s. 14, p. 96 to the word " oath " and then : " we find that the lot de- 
scribed in said petition was duly designated for the location of a school-house as stated 
in said petition by said petitioners, who are legal voters of said district, and said district 
has unreasonably neglected to build a school-house upon said lot [or, ' have unreason- 
ably neglected to remove their school-house to said lot '] and we therefore assess upon 

said district and order to be collected the sum of dollars, therewith to cause a 

school-house to be built upon said lot [or, ' therewith to cause the school-house of said 
district to be removed to said lot"]. 

Date, signature and recording as ante, p. 96, s. 14, (b), (c), (d). 

(c) The tax cannot be defeated by showing that the expenses were less than the es- 
timates, provided the selectmen have acted in good faith, and this will be presumed till 
the contrary is shown.— 45 R. 385, 397; Digest, p. 579, s. 44. 

The general form of assessment may be as in ante, p. 179, s. 25, and the warrant to 
the collector in the general form, as ante, p. 186, s. 17. As to new invoice, see s. 13, post. 

11. Where school shall be kept. No district school 
shall be kept in any other place than the school-house be- 
longing to the district unless there is no school-house, or 
the school-house is out of repair, or not of sufficient size to 
accommodate the scholars ; in which case the prudential 
committee, with the consent (1) of the school committee, 
may provide suitable rooms and conveniences for the use of 
the scholars at the expense of the district. — id. s. 9. 

(1) A verbal consent may be sufficient, but a written application, as follows, is advi- 
sable : 
To the School Committee of the town of : 

The undersigned, prudential committee of school district No. , in said town, 

respectfully represents that the school-house belonging to said district is not of suffi- 



SCHOOL-HOUSES. 299 

cient size to accommodate the scholars, and he proposes, with your consent, to provide 
suitable rooms and conveniences for the scholars at the expense of the district at 
[describe], and requests your approval. 

Dated at said , this day of , 18—. 

, Prudential Committee. 

Approved this day of , 18—. 



School Committee. 



12. In the assessment of school-house taxes, every per- 
son shall be taxed in the district in which he lives (1) for 
his poll and the personal estate which he has subject to 
taxation in town ; and all real estate shall be taxed in the 
district in which it is. — id. s. 10. 

(1) That is, in the district in which he lived on the 1st day of April, unless a new in- 
voice is made.— Gen. Sts. p. 120, c. 51, s. 1; p. 122, c. 53, ss. 1, 3; 52 R. 102; 32 Vt. 
R. 769; 31 do. 337; see s. 17, post. If this should result in double taxation, the select- 
men can abate. See ante, p. 182, s. 1. 

(a) If for any cause the vote upon which the assessment is made is unauthorized, the 
selectmen will be liable for assessing and collecting the tax. See ante, p. 177, s. 20 
(a). It is held elsewhere that one who pays such an illegal tax to the town collector or 
treasurer may recover it of the district.— 11 Gray, 487; 3 Cush. 573; 12 Pick. 206; 51 
Maine : 101; 41 do. 246. 

But it is presumed that it may be recovered of the town if it has not been paid over 
to the district, or the|ax-payer may proceed against the selectmen. 

(b) An omission through error of judgment or mistake of fact to assess a person 
liable to a school-house tax does not invalidate the tax as against others.— 21 Pick. 76; 
6 Met. 498. 

(c) If an illegal assessment has been made, the selectmen, or their successors, may 
make a new one. — 3 Mass 231. It is no objection to the validity of an assessment that 
it is not made within the time directed by the statute {ante, p. 177, s. 20).— id. 

13. New invoice. The selectmen may make a new in- 
voice of all the property in the district, when necessary for 
the just (1) assessment of the school-house taxes. — id. s. 11. 

(1) The mere fact of changes since the first of April, either in the ownership of 
property or by removals from the district, will not render a new invoice essential, for 
it may be just in some cases to tax upon the old invoice notwithstanding. — 42 R. 102; 
Digest, p. 579, ss. 46, 47. See ante, s. 12 (1). 

It has been held in Mass. that a person cannot be assessed in a school district after 
he has been set ojffroni it.— 12 Met. 178; 5 Gray, 413; 5 Pick. 323. 

14. Non-residents. If such taxes are assessed after the 
first of July, in any year, upon the property of non-resi- 
dents, the collector may deliver a copy thereof to the depu- 
ty-secretary on or before the eighth day of the next June 
session of the general court, and further proceedings may 
be had in relation thereto as if such tax had been assessed 
in April preceding. — id. s. 12. See ante, p. 196, ss. 4-26. 



300 



SCHOOL COMMITTEES AND TEACHERS. 



CHAPTEE LI. 



SCHOOL COMMITTEES AND TEACHERS. 



Annual report, s. 22. 

Copy of to sec. of board, s. 22. 
Branches required in schools, s. 6. 

Additional branches, s. 7. 
Certificate, of moral character, ss. 3, 4. 

Of qualihcations, ss. 3, 5, 8. 

Of return of register, ss. 17, 19. 
Compositions, s. 12(d). 
Dismission of teacher, 

Upon petition, s. 9, s. 10 (a). 

Without petition, s. 10, s. 10 (b). 
Examination, of teachers, ss. 6, 7. 

Of schools, s. 20, 21. 
Injunction against district, s. 8 (1). 
Notice of dismission, s. 11. 
Religious exercises, s. 12 (g). 
Rules and regulations, s. 12, s. 12(a), 

(b), (c), (d), (e), (f), (g). 
School committee, 

Choice of or appointment, ss. 1, 2. 



School committee, compensation of, ss. 
2 3. 

Duties of, ss. 3, 7, 9, 10, 12, 13-15, 20-24. 
Scholars from out the district, s. 12 (a). 
School registers, ss. 17, 18, s. 17 (a), 

s. 18 (a), s. 19. 
Sub-committee to examine, ss. 20, 21. ; 
Superintendent of schools, s. 24. 
Sweeping school-house, s. 12 (b). 
Teachers, qualifications of, ss. 3, 6, 7. 

Authority of, s. 8 (1), s. 12 (c), (d). 

Must produce certificates, s. 8 (1). 

Must return register, ss. 17, 18, 19, 
s. 18 (a). 

Not liable to parent, s. 9 (a). 

Suit by, for wages, s. 8 (1), s. 18 (a). 

When dismissed, ss. 9-11. 
Text-books, change of, ss. 13, 14, 15. 

Not to be sectarian, s. 15. 

Parents to provide, s. 16. 



1. School committee. Every town may elect annually, 
by ballot, a school (1) committee of so many persons as they 
think lit ; and whenever any town shall neglect to choose 
such committee in manner aforesaid, or otherwise accord- 
ing to law, the selectmen, before the twentieth of April, 
shall appoint (2) such committee. — Gen. Sts. p. 169, c. 81, 
s. 2. 

(1) A vote to choose five persons as an " examining committee," is a sufficient desig- 
nation.— 13 Pick. 229. 

(a) It is held in Mass. that the school committee may break open a school-house, 
from which a teacher has been unlawfully excluded, and re-instate him.— 8 Cush. 191. 
But it is presumed that they could not do it here, against the will of the prudential 
committee. See 37 Vt. 497 ; 24 do. 28. 

(2) See ante, p. 90, s. 12. 

2. Any town may adopt a by-law providing for the 
choice of a school committee of such number, chosen in 
such manner, for such terms, with such title, and such 
powers relating to schools, as they may think proper ; and 
the committee so chosen shall hold office and have power 
accordingly ; and shall perform all the duties imposed by 
law on school committees. — id. s. 2. 

3. To examine teachers. The school committee shall 
examine all persons proposing to teach school in the town, 
who shall produce satisfactory evidence of good moral char- 
acter and of suitable temper and disposition for teachers, 
in such branches as are usually taught in the class of 
schools in which they propose to teach, and as to their 



SCHOOL COMMITTEES AND TEACHERS. 301 

capacity for governing the same ; and if found competent 
they shall give them certificates thereof, setting forth the 
branches they are found capable of teaching. — id. s. 3. 

4. A CERTIFICATE OF MORAL CHARACTER, ETC., may be : 

This certifies that we have been acquainted with the 

bearer, , of this town, for — years, and that he 

is a person of good moral character, and of suitable temper 
and disposition for a teacher. 

Witness our hands at , this — day of , 18 — . 

[Signers.] 

An informal letter or verbal statement may be " satisfac- 
tory " if the committee choose to so regard it. 

5. A certificate of qualifications may be : 

This certifies that is well qualified to 

instruct (1) youth in reading, spelling, English grammar, 
arithmetic and the elements of geography and history (2). 

Witness our hands at , this — day of . , 18 — . 

) School Committee 

5 of 



(1) This implies a capacity to govern, and, if this is wanting, the certificate should be 
withheld.— 9 Allen, 94. 

(2) If other branches are to be taught the certificate should specify them. It should 
in all cases specify the branches which the applicant is found competent to teach and 
is expected to teach. 

6. Branches required. Teachers of common schools 
shall be examined in reading, spelling, writing, English 
grammar, arithmetic, and the elements of geography and 
history, and in other branches usually taught in said 
schools. — id. s. 9. 

7. Additional branches. The school committee may 
prescribe for any school, where in their judgment it shall 
be proper, the study of surveying, geometry, algebra, book- 
keeping, philosophy, chemistry, natural history, and physi- 
ology, or any of them, and other suitable studies ; and 
teachers proposing to teach in such schools shall be exam- 
ined in those branches in addition to those required of other 
teachers. — id. s. 5. 

8. No person shall be employed or paid for services 
as a teacher, unless he shall produce and deliver to the 
prudential committee a certificate of the school committee 
of the town in which the district where the school is to be 



302 SCHOOL COMMITTEES AND TEACHERS. 

kept is, or is deemed to be, that he is well qualified to in- 
struct youth in the branches to be taught in such school, 
id. s. 5. 

(1) Until such certificate has been obtained and delivered to the prudential commit- 
tee, or offered to him, the person employed has no right to wages and no authority. 
And the court upon application by any inhabitant of the district will grant an injunc- 
tion against paving one for services prior to the time he obtained his certificate.— 19 R. 
170; Digest, p. 133, s. 115; 9 Allen, 84: 27 Maine, 266, 278; 20 do. 154. 

It must be signed by a majority of the committee; but if thus signed, it cannot be 
objected that the committee did not act together in the examination— 27 Maine, 266, 
278 ; nor that it was granted without any examination provided it was not obtained by 
fraud.— 20 Vt. 495. 

The certificate should be from the committee of the current year.— 20 Maine, 37. 

9. Dismissing teachers. The school committee, upon 
petition of a majority of the legal voters in any district for 
the dismission of a teacher, after giving to the parties 
twenty-four hours' notice and a hearing, may dismiss him, if 
in their judgment such dismission will best promote the in- 
terests of the district. — id. s. 7. 

(1) It may occur that the dismission of a competent teacher without any fault on his 
part " will best promote the interests of the district," but such cases must be extremely 
rare. 

(a) A teacher is not liable to a parent for refusing to instruct his children.— 23 Pick. 
224. 

10. Without a hearing. The school committee shall 
without a petition dismiss any teacher who is found by them 
incapable or unfit to teach, or whose services are found un- 
profitable to the school, or who shall not conform to the 
regulations prescribed by them. — id. p. 170, s. 8. 

(a) The form of proceedings under s. 9, ante, may be : 
To the School Committee of the town of : 

The undersigned, constituting a majority of the legal voters in school district No. 

— , in said town, respectfully represent that the dismission of , who is a teacher in 

said district, will best promote the interest of the district [reasons may be assigned if 
deemed expedient], and they therefore request that he may be dismissed. 

Dated at said , this — day of 18 — . 

[Signers.] 

Order of notice, service and return except as to time as in s. 10, p. 93, ante. 

Final order as in p. 96, ante, to the word "oath" and then: "in our judgment the dis- 
mission of said will best promote the interests of the district [reasons may be 

assigned if deemed expedient], and a majority of the legal voters having petitioned for 
his dismission as aforesaid, said teacher is hereby dismissed." 

Date, signature and recording as ante, p. 96, ss. 14, (b), (c), (d). 

(b) An order under s. 10, ante, may be as follows: 

Whereas the services of , who is employed as a teacher in school district No. 

— , are found by us to be unprofitable to the district L reasons may be assigned if 
deemed expedient], said teacher is hereby dismissed. 

Date, signature and recording as ante, p. 96, s. 14, (b), (c), (d). 

11. Notice of removal. The school committee, upon 
dismission of any teacher, shall give immediate notice (1) 
thereof to the teacher and prudential committee ; and the 
teacher shall receive no pay for his services after such no- 
tice. — id. s. 9. 



SCHOOL COMMITTEES AND TEACHERS. 303 

(1) Notice to the prudential committee may be : 
To the Prudential Committee of School District No. —: 

You are hereby notified that , heretofore employed as teacher in said district, 

has this clay been dismissed, 

Witness our hands this — day of , 18 — . 

) School Committee 

' J of 



Notice to the teacher may be as follows : 

To , a Teacher in School District JVo. — : 

You are hereby notified that [upon the petition of a majority of the legal voters of 
said district] you have this day been dismissed [reasons may be assigned if deemed 
expedient]. 

Witness our hands this — day of , 18—. 

) School Committee 

' J of 



Service of the notice should be made by giving or leaving the original and retaining 
a copy; see ante, p. 90, s. 10. 

12. Rules and regulations. The school committee may 
prescribe suitable rules and regulations for the manage- 
ment, studies, classification and discipline of the schools, 
whenever they deem the same necessary ; and the same 
being recorded by the town-clerk, and a copy thereof given 
to the teachers and read in the schools, shall be binding 
upon scholars and teachers. — id. s. 10. 

The school committee may make such rules and reg- 
ulations respecting the attendance of the public schools in 
their respective towns as in their opinion may be neces- 
sary. — Laws of 1868, p. 115, c. 9. 



REGULATIONS FOR SCHOOLS IN THE TOWN OF 



No child under three years of age shall attend any sum- 
mer school, and no child under four years of age shall at- 
tend any winter school (a). 

School-rooms shall be kept warm and clean, and teachers 
may in their discretion require scholars to kindle fires and 
sweep school-rooms (b). 

Scholars shall be responsible to teachers for any miscon- 
duct in going to or returning from school except when in the 
immediate care of their parents, masters or guardians (c). 

Compositions shall be required of the most advanced 
class in grammar once in two weeks during the term (d). 

Witness our hands this — , day of , 18 — . 

) School Committee 

\ of 



Recording by town clerk as in p. 85, s. 42 (c), ante. 

(a) The act of 1868 was not probably intended to authorize the school committee to 
determine in relation to the attendance of scholars from out the district. See ante, 
p. 282, s. 32. 



304 SCHOOL COMMITTEES AND TEACHERS. 

(b) Ordinarily a regulation that scholars shall sweep the school-room is reasonable 
and valid.— Hideout vs. Woods, Hillsborough, March Ad. Term, 1868. 

(c) It is said by Aldis J., in 32 Vt. R. 12U, that the supervision and control of the 
master over a scholar extends from the time he leaves home to go to school till he re- 
turns. 

The question does not appear to have come before the courts of this state, and to re- 
move doubts it may be well for the school committee to make a rule on the subject. 

The case in Vt. was where the scholar some hours after his return home, but in 
the presence of other scholars, used insulting language toward the teacher for which 
he was punished by the teacher on his return to school the next morning. The court 
held that although the teacher has in general no right to punish for misconduct after 
school hours and the return of a pupil to his home, yet he may on the pupil's return to 
school punish him for any misbehavior "which has a direct and immediate tendency 
to injure the school and subvert the master's authority" and the jury found the mis- 
conduct in that case was of this character.— Lander vs. Seaver, 32 Vt. 114. 

(d) It has been decided in Vermont that the teacher may require compositions of the 
grammar class and that a scholar may be expelled who does not conform to the re- 
quirement.— 32 Vt. 225. 

" It seems that such a requirement would be reasonable and proper in the majority 
of the studies prescribed for district schools." — id. per Redfield, Ch. J. 

(e) It has been decided in Massachusetts, under a similar statute, that separate 
schools may be provided for colored children. — 5 Cush. 198. 

(f) The school committee may determine the vacations if they see fit. — 12 Gray, 61. 

(g) It, has been decided in Massachusetts that the school committee of a town may 
lawfully make a rule that the schools shall be opened each morning with reading from 
the Bible and with prayer, and that during prayer each scholar shall bow the head, 
unless his parents shall request that he be excused from doing so; and that they may 
lawfully exclude from the school a scholar who refuses to comply with such rule and. 
whose parents refuse to request that he be excused from doing so. — Speller vs. Woburn ; 
12 Allen, 127. 

It was considered that this regulation, that the scholar should bow the head, did not 
compel him to join in the prayer, but was merely to preserve order and decorum dur- 
ing the services. " A regulation," said Ch. J. Bigelow in delivering the opinion of the 
court, "requiring the pupils to conform to any religious rite or observance or go through 
with any religious forms or ceremonies which are contrary to their religious convic- 
tions or conscientious scruples, would be a violation of the spirit of the constitution of 
that state, which provides that ' no one shall be hurt or molested in his person, liberty 
or estate for worshiping God in the manner and season most agreeable to the dictates 
of his own conscience.'" 

13. Text-books, change of. Any text-book or series of 
text-books on one subject, which on the tenth day of July, 
1867, shall have been in established use in any school for 
a less time that three years, and any which shall be there- 
after introduced by the school committee, shall continue in 
use therein for the term of three years from its introduc- 
tion, and during that time no other text-books on the same 
subject shall be used. — id. s. 11. 

14. The school committee may direct a change of one 
of the text-books or series of text books on one subject, 
used in each class of schools kept in town, annually, and 
no more. — id. s. 12. 

15. Not sectarian. No book shall be introduced calcu- 
lated to favor any particular religious or political sect or 
tenet. — id. 

16. Parents, etc., to provide. The parents, masters, or 
guardians of the scholars attending school, shall supply 
such scholars with the books required to be used in the 
schools ; and upon neglect or refusal, after notice, the same 



SCHOOL COMMITTEES AND TEACHERS. 305 

shall be furnished by the school committee at the expense 
of the town ; and the cost of the same shall be added to 
the next annual tax of such parent, master, or guardian, if 
able to pay the same. — id. s. 13. 

17. School registers. The school committee shall furn- 
ish to every teacher one of the blank registers required to 
be furnished by the board of education, and each teacher 
shall cause all proper entries to be made therein as required 
by said board ; and in the absence of such register he shall 
keep a record of the names and ages of all the scholars 
attending his school, the studies pursued by each, and the 
number of half days each has attended his school. — id. s. 14. 

(a) It has been held in Massachusetts that the school committee cannot maintain 
trespass for school registers taken from their possession.— 3 Cush. 519; 14 Gray, 160; 
but see Digest, p. 6i3, s. 32. 

18. Return of. Every teacher, at the close of his 
school and at the end of each term thereof, shall make a 
return of such register or record to the school committee 
of the town, who shall give to him a certificate thereof; 
and no teacher shall receive payment for his services until 
such certificate is produced and delivered to the prudential 
committee. — id. s 15. 

(a) As the certificate is now required it will protect the prudential committee in 
paving, but it may not be conclusive in an action by the teacher for his wages. — 2 Al- 
len, 593. 

19. The certificate may be as follows : 

This certifies that , a teacher in school district 

No. — , has returned to us a school register or record as 
required by law. 

Witness our hands this — day of , 18 — . 

) School Committee 

I of 



20. Visiting schools. The school committee shall visit 
and examine personally, or by a sub-committee by them ap- 
pointed, each school kept in town, at least twice in each 
term, near the beginning and toward the close thereof. — 
Gen. Sts. p. 170, c. 81, s. 10. 

21. By sub-committee. Such school committee may elect 
one of their number to visit and superintend the schools, 
who shall make report to the committee of his doings, and 

20 



306 



SCHOOL COMMITTEES AND TEACHERS. 



of the state of the schools, before the first day of March an- 
nually. — id. s. 17. 

They must transmit a copy of their report to the secretary 
of the board of education before the first day of April an- 
nually. — Gen. Sts. p. 275, c. 84, s. 4. 

22. Annual report. The school committee shall present 
to the town, at its annual meeting, a report stating the 
number of weeks the public schools have been kept in each 
district, in summer and winter, and what portion by male 
and what by female teachers ; the whole number of scholars 
that have attended each school, and the number attending 
to each study ; the number of children between four and 
fourteen that have not attended school, and the number of 
persons in each district between the ages of fourteen and 
twenty-one years who cannot read and write, with such sug- 
gestions relative to the schools as they may think useful. — 
id. p. 81, s. 19. 

A table in the following form may be found convenient : 





5 




o 
o 


00 

e3 


# 


<* 1 


*2« 




'$ 




o 

02 


o 


4> 

a 


n<ao 




No. of District. 




Names of Teachers. 


00 


© 
d 


o> OS'S 






a 
a 




O 

d 




5 

.9 

d 








m 




fc 


fc 


fe 


23 


1. 


Summer. 


Miss S. F. 














Winter. 


Mr. C. R. M. 












2. 


Summer. 


Miss A. B. 














Winter. 


Mr. J. C. G. 













* Similar columns for the other branches. 

23. Compensation. The school committee, upon satisfy- 
ing the selectmen that they have attended to the duties and 
made the reports by law required, shall be entitled to re- 
ceive such reasonable compensation as the town may deter- 
mine. — id. s. 20. 

24. Superintendent. Any town, by a by-law, may pro- 
vide for the election, in such manner as they think fit, of a 
superintendent of schools, who shall hold his office for such 
term, be vested with such of the powers and charged with 
such of the duties of the school committee and of the pru- 
dential committee, and be entitled to such compensation, 
as may be therein provided. — id. s. 18. 



HIGH SCHOOLS. 307 



CHAPTEE LII 



HIGH SCHOOLS. 



Districts fob, how formed, ss. 2, 3. 

By vote of town or district, s. 2. 

By union of districts, s. 3. 

Organization of, how effected, ss. 4, 4 
(a). 
High-school committee, ss. 7, 8. 

School committee to act as such, s. 10. 



Prudential committee, ss. 9, 11. 

When selectmen shall appoint, ss. 4, 
11. 
School-house for high schools, s. 12. 
Special statutes continued in force, s. 

13. 
Raising money for high schools, ss. 5, 6. 



1. Districts for. Districts for the support of high 
schools may be established in any town, which shall have 
the same powers and be subject to the same rules as other 
school districts, except so far as they may be changed by 
this chapter. — Gen. Sts. p. 171, c. 82, s. 1. 

2. By vote of town or district. Any town, by vote in 
town meeting or by by-law, and any school district having 
not less than one hundred children between six and sixteen 
years of age therein, by vote of two-thirds of the legal voters 
at a legal meeting, or by a by-law adopted by the like pro- 
portion of voters, may determine to establish a high school, 
and shall thereby be constituted a high school district (1) ; 
and by a like vote such district may be discontinued. — id. 
s. 2. 

(1) The article in the warrant for the district ireeting may be: 

" To see if said district will by a vote of two-thirds of the legal voters at said meet- 
ing establish a high school ;" and the vote may be : " Upon the article in the war- 
rant, it was moved and seconded that said district establish a high school; upon which 
motion twelve voted in the affirmative and six in the negative, and two-thirds of the 
legal voters at said meeting voting in favor of said motion, it was adopted." 

3. Union district. Two or more school districts in the 
same or different towns, by concurring votes of two-thirds 
of the voters of each district, may unite in the support of 
a high school, and shall be a high-school district (1). 
They shall nevertheless each retain their separate organiz- 
ation for the support of the common schools therein. — id. 
s. 3. 

(1) The article in the warrants may be : 

"' To see if said district will by vote of two-thirds of the voters of said district unite 
with school district No. — , in the town of , in the support of a high school." 

And the vote may be : 

" Upon the article in the warrant it was moved and seconded that said district 

unite with school district No. — , in the town of , in the support of a high school, 

and with said district constitute the Union high-school district, upon which 

motion twenty voted in the affirmative and sis in the negative, and two-thirds of the 
voters of said district voting tor said motion, it was adopted." " Voted, that the clerk 
be directed to certify the proceedings of this meeting to said district No. — ." 



308 HIGH SCHOOLS. 

4. Organization. If two or more districts have voted 
to unite, an application should be made to the selectmen to 
appoint a prudential committee of the high school district ; 
and this is the more prudent course, when a single district 
has voted to establish a high school, although in the latter 
case the appointment had better be given to the then pru- 
dential committee of such district. If two or more dis- 
tricts in different towns unite, the selectmen of the town in 
which most of the voters reside can probably appoint. — 
ante, p. 277, s. 13. 

(a) In calling the first meeling of the high-school district (as there is no high-school 
house), it is advised that a copy of the warrant be posted at the school-house in each 
district composing the high-school district, and also in some other public place in such 
district. 

5. May appropriate money. Such town or district may, 
.by vote or by-law, appropriate such part of the school 
money to which they are entitled as they think fit for the 
support of the high school, and the same shall be paid to 
the prudential committee of such high-school district, or 
to the officer or agent of the town or district who is charged 
with his duties. — id. p. 182, s. 4. 

6. Additional sum. Such town or district may, by vote 
or by-law, raise such sum, in addition to the school tax re- 
quired by law for the support of such high school, as they 
shall think proper, which shall be assessed and collected as 
other school taxes, and paid over to the prudential commit- 
tee or officer charged with his duties. — id. s. 5. 

7. A high-school committee may be elected by such 
town or district in the same manner as school committees 
may be chosen. — id. s. 6. 

8. Duties of. The high-school committee shall have 
the entire charge thereof, shall prescribe and ascertain the 
qualifications of the teachers, prescribe the course of stud- 
ies, the books to be used, and the qualifications required 
for admission, and generally shall have the same powers 
and perform the same duties in regard to such high schools 
as school committees in relation to common schools. — id. 
s. 10. 

9. A prudential committee of such district may be cho- 
sen, or the high-school committee or any other officer or 
agent of such town or district may, by vote or by-law, be 
charged with the duties of such prudential committee. — id. 
s. 7. 



HIGH SCHOOLS. 



309 



10. If no high-school committee is chosen or appointed, 
the school committee of the town shall be ex officio the 
high-school committee of such district. — id. s. 8. 

11. If no prudential committee is chosen, and no per- 
son is charged with his duties, or if from any cause there 
is a vacancy in said office, the selectmen shall fill such va- 
cancy as provided in the case of common school districts, 
—id. s. 9. See ante, p. 290, ss. 24, 25. 

12. Any high-school district may purchase a suitable 
lot for their school-house, and in case the location of a 
school-house has been fixed according to law, and the 
agents of the district cannot agree with the owner for the 
purchase of the same, the selectmen may lay out such lot, 
not exceeding half an acre, as in other cases. — id. s. 11. 

13. Special statutes. All statutes heretofore passed 
applying to particular places or districts, relating to schools 
or the committees or officers thereof, now in force, shall 
remain in force until repealed, altered or suspended. — id. 
s.12. 



CHAPTER LIII 



SCHOLARS. 



Factory children, 11, 12, 13. 
From out the district, s. 1. 
Dismissed from school, s. 5. 
Disturbing schools, s. 3. 
May be assigned to particular 

schools. 
Penalty for attending elsewhere. 



Punishments, not to be excessive, s. 15. 
Teacher, authority of, ss. 14. 15. 
Truants, by-laws for, s. 6. 

Officers to enforce, s. 7. 
Truants may be finkd, s. 9. 

May be sent to house of correction, 8. 

When offender may give bond, s. 10. 



1. From out the district. No person shall have a 
right to attend school, or to send any scholar to the school, 
in any district of which he is not an inhabitant, without 
the consent of the district or of the prudential committee. 
—Gen. Sts. p. 173, c. 83, s. 1. See ante, p. 282, s. 32 (1), 
p. 303, s. 12(a). 

2. NO SCHOLAR WHO SHALL HAVE BEEN ASSIGNED to a par- 
ticular school by vote of the district, or by the committee 
authorized by the district to assign the scholars to particu- 
lar schools, shall have the right to attend any other school 
in the district until assigned thereto. — id. s. 4. 

3. Penalty for attending elsewhere. If any scholar, 



310 SCHOLARS. 

after notice, shall attend or visit a school which lie has no 
right to attend, or shall interrupt or disturb the same, he 
shall be fined for the first offence five dollars, and for the 
second offence he shall be fined ten dollars, or be im- 
prisoned not exceeding thirty days. — id. s. 5. 

4. NO CHILD, UNLESS HE HAS BEEN DULY VACCINATED Or 

has had the small-pox, is entitled to attend any public 
school ; and the prudential committees of the several dis- 
tricts, and those who exercise the powers of such commit- 
tees, shall not allow any such child to be admitted to or 
connected with any such school. — id. s. 2. 

5. Any scholar may be dismissed from school by the 
school committee for gross misconduct, (1) or for neglect 
or refusal to conform to the reasonable rules of the school ; 
and shall have no right to attend the school till restored by 
the school committee. — id. s. 3. 

( 1) This may be out of school and school hours as well as in. — 8 Cush. 160. See ante, 
p. 304, s. 12 (b). 

6. Any town may make by-laws concerning habitual 
truants and children not attending school, without any reg- 
ular and lawful occupation, between the ages of six and 
sixteen years, and to compel the attendance of such child- 
ren at school, not repugnant to law ; and may annex pen- 
alties for the breach thereof not exceeding ten dollars for 
each offence. — id. s. 10. 

7. Such town may appoint three or more officers to en- 
force such laws, either of whom, and no other, may make 
complaint for such offences, and shall be authorized to 
serve any process relating thereto. — id. s. 7 ; 10 Allen, 149. 

8. House of correction. Any offender against such by- 
laws, upon conviction, may, instead of such fine, be sen- 
tenced to the reform school for a term not exceeding one 
year. — id. s. 8. 

9. Committed for fine. Any such offender, on convic- 
tion and sentence to pay such fine, may, in default of pay- 
ment, be committed to the reform school till the same be 
paid or he is otherwise discharged ; but the court or jus- 
tice imposing such sentence may at any time discharge such 
offender, on proof that he is unable to pay said fine, and 
has no parent, guardian, or person chargeable with his sup- 
port, able to pay it. — id. s. 9. 

10. Such offender so convicted may give bond to the 



SCHOLARS. 311 

town in the penal sum of twenty-five dollars, with sufficient 
sureties, approved by the court or justice before whom he 
was convicted, conditioned to attend regularly some dis- 
trict or other school kept in such town, for one term next 
ensuing, when the same is kept, to comply with the regu- 
lations thereof, and to be obedient and respectful to the 
teacher ; and his fine may thereupon be remitted by such 
court or justice on payment of the costs. — id. p. 174, s. 10. 

11. Factory children. No child under fifteen years of 
age shall be employed in any manufacturing establishment, 
unless he has attended some public school, or private day 
school where instruction was given by a teacher competent 
to instruct in the branches taught in common schools, at 
least twelve weeks during the year preceding. — id. s. 11. 

12. No child under the age of twelve years shall be em- 
ployed as aforesaid, unless he has attended school as afore- 
said at least six months during the year preceding, or has 
attended the school of the district in which he dwelt the 
whole time it was kept during such year. — id. s. 12. 

13. Penalty. The owner, agent or superintendent of 
any manufacturing establishment who shall employ such 
child without requiring a certificate, signed by the teacher 
of such school or prudential committee of the district in 
which it was kept, that such child has attended school as 
aforesaid, shall be fined fifty dollars. — id. s. 13. 

14. Adults. When a person over twenty-one attends 
as a scholar the master has the same authority over him as 
others.— 27 Maine, 266. 

15. The use of force. The power of expulsion vested 
in the school committee does not take from the master the 
right to use force, if necessary, to maintain his authority, 
and he may call upon others to assist him. — 27 Maine, 266, 
279. See ante, p. 302, s. 8 (1), s. 11 (a). Punishments 
inflicted must not be excessive. — id. ; 32 Vt. 114. 



312 



BOARD OF EDUCATION. 



CHAPTER LIV. 



BOARD OF EDUCATION. 



Board, of whom composed, s. 1. 
Report of, to be printed, etc., s. 7. 
School committee, duties of, s. 5. 
Penalty for neglect, s. 6. 



Superintendent, appointment of, s. 2. 

Duties of, ss. 2, 4, 7. 

Salary of, s. 3. 
Teachers' institutes, s. 8. 



1. The governor and council shall constitute and be 
denominated the board of education, and shall have general 
supervision and control of the educational interests, of the 
state ; shall prescribe the form of registers to be kept in the 
schools, and the form of blanks and inquiries for the 
returns to be made by the school committees ; shall annu- 
ally, on or before the third Wednesday in June, lay before 
the general court a report containing a printed abstract of 
said returns, and a detailed report of all the doings of the 
board, with such observations upon the condition and effi- 
ciency of the system of popular education in this state, and 
such suggestions as to the best means of improving it, as 
the experience and reflection of the board may dictate. — 
Gen. Sts. p. 174, c. 84, s. 1. 

2. The governor and council shall appoint a superin- 
tendent of public instruction, who shall have assigned him, 
by the governor and council, suitable office-room in the 
state-house, and who shall be ex officio a member and the 
secretary of the board of education, who shall hold his 
office for the term of two years, and who, under the direc- 
tion of said board, shall make the abstracts required by the 
preceding section ; he shall also suggest to the board and 
to the general court improvements in the system of public 
schools ; shall visit, as often as other duties will permit, 
different parts of the state for the purpose of awakening and 
guiding public sentiment in relation to the practical inter- 
ests of education ; shall collect in his office such school- 
books, apparatus, maps and charts as can be obtained 
without expense to the state ; receive and arrange in his 
office the reports and returns of the school committees, and 
receive, preserve or distribute the state documents in rela- 
tion to the public schools, and discharge such other duties 
as may be assigned him by law. — id. s. 2. 

3. Salary. The superintendent of public instruction 
shall receive an annual salary of twelve hundred dollars, and 



BOARD OF EDUCATION. 313 

his necessary traveling expenses incurred in the perform- 
ance of his official duties, after they shall have been audited 
and approved by the board ; and all postages and other 
necessary expenses arising in his office shall be paid from 
the treasury in the same manner as those of other depart- 
ments of the government, all accounts being first audited 
and allowed. — id. p. 175, s. 7. 

4. Duties op. The superintendent of public instruction 
shall, under the direction of the board of education, give 
sufficient notice of such meetings of teachers of public 
schools, members of school committees of the several towns, 
and friends of education generally, in any county, as may 
voluntarily assemble at such time and place as may be 
designated by the board, and shall at such meetings collect 
information as to the public schools of the county, of the 
fulfillment of the duties of their office by members of school 
committees, and of the circumstances of the school dis- 
tricts in regard to pupils, teachers, books, apparatus, and 
methods of instruction, to enable him to furnish all infor- 
mation desired for the report of the board of education ; 
he shall send the blank forms of inquiry, the school regis- 
ters, the annual report of the board (including his own 
report to said board) , to the clerks of the several towns 
and cities, for the use of the several school committees 
therein, as soon as they are ready for distribution. — id. s. 3. 

5. School committees to report to him. The school 
committee of each town shall, before the first day of April 
annually, transmit to the secretary of the board of educa- 
tion a copy of the report by them presented to the town at 
its annual meeting, and answers, according to the forms 
provided, to all such questions as may be proposed by said 
board of education relating to the appropriation of school 
money received, the studies pursued in the schools, the 
methods of instruction and discipline adopted, the condi- 
tion 'of school-houses, and any other subject relating to 
schools. — id. s. 4. 

6. Penalty for neglect. The school committee of any 
town who shall neglect to make the return aforesaid, agree- 
ably to the preceding sections, shall be fined not exceeding 
fifty dollars. — id. s. 5. 

7. Printing. The superintendent of public instruction 
shall procure, under authority of the secretary of state 



314 BOARD OF EDUCATION. 

and at the expense of the state, four hundred copies of 
the report of said board to be printed, and lay them be- 
fore the general court, to be disposed of at their discre- 
tion ; one hundred copies for the purpose of exchange with 
other states and for distribution among the friends of edu- 
cation, and one additional copy for each town, ward, and 
unincorporated place having ten legal voters. — id. s. 6. 

8. A teachers' institute is provided for by the act of 
July 3, 1868, under the supervision of the superintendent 
of public instruction.— Laws of 1868 3 p. 151, c. 19. 



TITLE VII. 



PAUPERISM AND ITS PREVENTION. 



CHAPTER 


LV.- 


CHAPTER 


LVL- 


CHAPTER 


LVIL- 


CHAPTER 


LVIII.- 


CHAPTER 


LIX.- 


CHAPTER 


LX.- 


CHAPTER 


LXL- 


CHAPTER 


LXIL- 


CHAPTER 


LXIII 



-Masters and Apprentices. 
-Guardians of Insane Persons and Spend- 
thrifts. 
-Settlement of Paupers. 
-County Paupers. 
-Furnishing Relief to Paupers. 
-Poor Farm and Binding- out Paupers. 
-Insane Persons and Asylum. 
-Suits for Supplies to Paupers. 
—Maintenance of Bastard Children. 



CHAPTER LV. 



MASTERS AND APPRENTICES. 



Complaint against master, ss. 7, 8. 
Consent of minor, ss. 1, 2. 

Of selectmen, ss. 1, 3. 
Covenants when independent, s. 9 (a). 
Damages and costs, ss. 8, 9. 
Decease of master, s. 6. 
Discharge of minor, ss. 7, 8. 

Of master, ss. 9, 9 (a), 10. 
Enticing away apprentice, ss. 12, 12 (a). 
Factories, children in, s. 14. 
Guardian may bind out, ss. 1, 2. 
Indentures, requisites of, ss. 3, 4. 

Effect of, s. 5. 

Form of, s. 3 (a). 

"Where kept, s. 4. 

When void, ss. 3, 5 (a). 



Master, authority of, s. 6 (a). 
Minors above fourteen, ss. 1, 2, 3. 

Under fourteen, ss. 1, 2, 3. 
Misconduct of apprentice, ss. 9, 10, 11. 

Of master, ss. 7, 8, 13. 
Neglect to teach apprentice, ss. 8, 13. 
Parent may bind out, ss. 1, 2. 
Paupers, when bound out, s. 1 (a). 
Personal trust, s. 6 (a). 
Runaway apprentice, ss. 11, 12 (a). 
Selectmen, duties of, ss. 1 (a), 3, 7. 
Sickness of apprentice, s. 9 (a). 
Ten hours a day's work, s. 15. 
Town clerk to keep indenture, ss. 4, 5. 
Usage of minors inquired into, s. 7. 



1. Children under the age of fourteen years may be 
bound as apprentices until that age, without their consent, 
by their father if living, or if not living by their mother or 



316 MASTERS AND APPRENTICES. 

guardian ; and if such child has no parent or guardian he 
may bind himself, with the approbation of the selectmen or 
overseers of the poor of the town where he resides. — Gen. 
Sts. p. 346, c. 68, s. 1. 

(a) Selectmen have no authority except under this section and section 7, post, and in 
respect to paupers. 

2. Minors above the age of fourteen may be bound with 
their consent by their father, or, after his decease, by their 
mother or guardian, as apprentices; females until eighteen, 
or to the time of their marriage within that age, and males 
to the age of twenty-one. The consent of such minor shall 
be distinctly expressed in the indentures, and testified by 
his signing the same. — id. s. 2. 

3. By indentures only. No minor shall be so bound 
except by indentures of two parts, signed, sealed and de- 
livered by both parties ; and when the minor binds himself 
with the approbation of the selectmen or overseers of the 
poor, such approbation shall be certified in writing, signed 
by them, on each part of the indentures. — id. s. 3. 

(a) The form of indenture, of a minor under fourteen, may be : 

This indenture witnesseth that , resident of the town of and having no 

parent or guardian, with the approbation of the selectmen of said town binds himself 

unto , of the town of , as an apprentice to learn the trade or business of a 

until the — day of , 18—, when he will be fourteen yearsof age, and during 

all said time he shall and will obey all the lawful commands of his said master, and 
him faithfully serve. 

And the said covenants that he will faithfully teach the said , or cause 

him to be taught, the said trade or business in a suitable manner, and will cause him 
to be taught to read, write and cipher, and will furnish him with proper and sufficient 
food, clothing, lodging, medicines and other necessaries both in sickness and in health 
during said term [here insert other stipulations]. 

I'n witness whereof, the said parties have hereto set their hands and seals this 

day of ,18—. 

Signed, sealed and delivered in the presence of us. 



5 cent 
stamp. 



[Seal.] 
[Seal.] 



We have carefully examined the within indenture and approve the same. 

Witness our hands this — day of , 18—. 

, ) Selectmen of 



4. Where kept. One part of the indentures shall be 
kept by the master or mistress and the other part by the 
parent or guardian of the minor, or, if approved by the 
selectmen or overseers of the poor, by the clerk of the town 
in trust for such minor. — id. s. 4. 

5. Effect. All indentures executed as aforesaid shall 
be good and effectual in law against all the parties thereto. 
— id. s. 5. 



MASTERS AND APPRENTICES. 317 

(a) A contract of apprenticeship, not conformable to the statute, is voidable only by 
the apprentice, and cannot be avoided bv any other person or party, for that reason. — 
36 R. 305; 45 R. 416; Digest, p. 43, ss. 4, 5. 

If the apprentice fulfill the stipulations of such voidable contract, he will be entitled 
to the benefits accruing to himself from its terms.— id. 

The minor's quitting the master's service and engaging in labor elsewhere are suffi- 
cient evidence of an avoidance of the contract by him. — 1 R. 413; 44 R. 370; Digest, p. 
43, s. 3. 

6. Decease of master. The indentures shall not be bind- 
ing upon the minor or upon his parent or guardian after the 
decease of the person to whom such minor was so bound ; 
but if said apprenticeship has nearly expired, and such ap- 
prentice chooses to complete his service with the widow or 
the executor or administrator of his master he shall be en- 
titled to all the benefits of said indentures, which shall be 
paid out of said estates as though the master had lived until 
such apprenticeship expired. — id. s. 6. 

(a) The trust is personal, and the master cannot assign the services of his apprentice 
without his consent -34 R. 66; Digest, p. 42. s. 1 ; 19 Pick. 556; 12 do. 109; 8 Mass. 299; 
1 do. 172; nor compel him to accompany him on his removal from the state.— 5 R. 405, 
Digest, p. 43, s. 7; 9 Grav, 84, 86; 13 Met. 80; 12 Pick. 107; 2 Mass. 199; 6 do. 273; 1 do. 
172; 12 .vlaine, 315. See 5 Gray, 535. But a mere intention by the master to remove 
from the state Js no violation of his covenants.— 2 Pick. 356. 

7. Usage inquired into. Parents, guardians, selectmen, 
or overseers, shall inquire into the usage of minors bound 
out, and defend them from the cruelty, neglect or breach 
of covenant of the master ; and may make complaint (1) 
thereof to any justice, who shall notify (2) the parties, and 
hear and determine such complaint. — id. p. 347, s. 7. 

(1) The form of a complaint by selectmen may be : 

To , a Justice of the Peace in and for the county of : 

The undersigned, selectmen of the town of , in said county, complain that 

minor untie-- fourteen years of age, having no parent or guardian and residing 



in said town, with the approbation of the selectmen of said town, on the — day of 

18—, bound himself by indenture to , of the town of , in said county, as an 

apprentice to learn the trade or business of a [here state the trade], from that date 

until the — day of , 18—, when he will be of the age of fourteen years; and the 

said in and by said indentures covenanted among other things that he would 

\liere insert the covenants that have been broken] ; yet the said , unmindful of his 

said covenants, has [here insert specifically the breaches of covenant], to the damage of 

the said minor lollars, and contrary to the statute in such case made and provided, 

against the peace and dignity of the state; wherefore they pray for the discharge of said 

minor from said indentures, and for judgment against said for said damages by 

said minor sustained by the breach of covenant, neglect of duty and cruelty of the said 

as aforesaid, and for costs. 

Selectmen 
of 



ss. May — , 18—. Then the said made oath that the foregoing com- 



plaint, by them signed, is in their belief true. Before me, 

, Justice of the Peace. 

If the complaint is not for breach of covenant,~it may omit the words in italics and 

should allege the specific acts of neglect or crueity r relied upon, as that the said , 

on the — day of , 18—, at ,Hn said county, wMi f >rce and arms made an ag- 
gravated assault upon the sail , and him cruelly did beat, wound and bruise ; 

or that the said . unmindful of his duty, at , in said county, for a long 

time, to wit from to , cruelly neglected to provide the said minor with suit- 
able and necessary food and clothing, etc. 



318 MASTERS AND APPRENTICES. 

(2) Notice to the defendant may be as follows : 
To , of , in the county of : 

You are hereby notified to appear at , in the town of , on the — of 

next, at — o'clock in the noon to answer to a complaint made to me, a justice of the 

peace in and for said county, by the selectmen of the town of , a copy of which 

is hereto annexed. 

Dated at , in said county, this — day of 18—. 

, Justice of the Peace. 

The copy may be attested by the justice and service be made in person or by leaving 
at the usual place of abode with certificate and affidavit of service as in s. 10 (b), (c), 
p. 93, ante. 

Reasonable notice should be given ; fourteen days will be sufficient. 

A similar notice should be given to the selectmen. 

8. Discharge of minor, etc. If the complaint is sup- 
ported, the justice may render judgment (1) that such 
minor be discharged from his indentures, and that the 
master pay all damages (2) sustained by the minor from 
such neglect, cruelty, or breach of covenant, and costs ; 
but if said complaint is not sustained the justice shall 
award costs to the respondent ; and in either case execu- 
tion may issue therefor. — id. s. 8. 

(1) The record of conviction may be : 

H ss. Be it remembered that on the — day of , 18—, at a justice court 

holden before me, a justice of the peace in and for said county, at , in the town 

of , in said county, at — o'clock in the noon, to hear and determine upon the 

complaint of the selectmen of the town of against , of the town of , 

that a minor [here state the allegations against the defendant as in the com- 
plaint] ; the parties having been duly notified appeared, and the said pleaded 

not guilty to said complaint, but having heard all the proofs and allegations of the 

said parties it appears to me that said complaint is supported, and tbe said is 

guilty of the breaches of covenant and neglect and cruelty therein alleged: It is 
therefore ordered by me, the said justice, that the said minor be discharged from said 

indentures, and that the said pay to said selectmen, for the use of said minor, 

the sum of dollars, damages sustained by said minor from such neglect, cruelty 

and breach of covenant, and also the sum of dollars cost. 

, Justice of the Peace. 

Execution for damages and costs may be issued as in other cases. 

(2) It seems that the entire damages should be assessed, as well after the date of 
complaint as before. — Digest, p. 237, s. 12, p. 238. ss. 16, 17. Although in an action for 
covenant broken, it may be otherwise. — 4 Pick. 105. 

9. Misconduct of apprentice. If any apprentice is 
guilty of any gross misbehavior, willful neglect, or refusal 
of duty, and shall persist therein after being suitably re- 
monstrated with by his master, the master may make 
complaint thereof to any justice, who, after duly notifying 
said apprentice and all persons covenanting in his behalf, 
shall hear and determine such complaint, and render judg- 
ment that the master be discharged from the indentures, 
and recover costs against the parent, guardian, or minor, 
or that costs be taxed for the respondent ; and in either 
case execution may issue accordingly. — id. s. 9. 

(a) The covenants in the indenture are generally independent (30 R. 132), and there- 
fore if the apprentice steal his master's goods the master cannot, of Lis own authority; 
discharge him, but he may file a complaint for the rescission of the indentures. — 2 Pick. 
451. It is held in Massachusetts that the justice may discharge the indentures if the 
minor by reason of an incurable disease become unable to serve.— 2 Pick. 451. But it 
is presumed that such is not the law here. See 30 R. 104. 



masters and apprentices. 319 

10. If any apprentice strikes or uses ant personal 
violence toward his master, any justice, upon complaint, 
notice, and hearing of the parties, shall render judgment 
against the parent, guardian or minor for all damages sus- 
tained, and for costs, and may issue execution therefor, 
and, if the master chooses, shall adjudge the indentures to 
be void ; otherwise for the respondent for his costs, and 
may issue his execution therefor against the master. — id. 
s. 10. 

11. Runaway apprentice. If any apprentice leaves the 
service of his master without sufficient cause, the master 
may empower any person to apprehend and return him ; 
and all necessary expenses incurred therein, and all rea- 
sonable damages sustained, shall be recovered by the mas- 
ter of the parent or guardian of such apprentice, and if 
paid by a guardian shall be a proper charge in his guardian- 
ship account. — id. s. 11. 

12. Enticing away. If any person entices or persuades 
away any apprentice from the service of his master, or se- 
cretes, conveys or sends off any apprentice, either by sea 
or land, or in any way causes any apprentice to leave the 
service of his master, such person shall make good all 
damages to the master, and be fined not less than five nor 
more than one hundred dollars. — id. s. 12. 

(a) He who knowingly employs an apprentice without the consent of his master, is 
liable to the master in an action for the work and labor of the apprentice. — 3 R. 272. 
And perhaps he will be liable, although he did not know of the apprenticeship, if the 
master was not in fault.— 19 Pick. 556 ; 7 Maine, 457. 

13. Neglect to teach apprentice. If any master 
neglects to teach or cause to be taught to any apprentice 
the art, trade or profession he was bound to teach, or to 
fulfill any part of his contract, he shall pay such apprentice, 
after he becomes of age, all damages sustained by reason 
of such neglect. — id. s. 13. 

14. Factories, children in. No minor under the age 
of fifteen years shall be employed in any manufacturing 
establishment more than ten hours in a day, in any labor, 
without the written consent of the parent or guardian of 
such minor first obtained. If any manufacturer or any 
corporation, or the agent of any manufacturer or corpora- 
tion, shall employ any such minor in violation of the pro- 
visions of this section, he or they shall be fined not exceed- 
ing one hundred dollars. — id. s. 15. 



320 GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 

15. Ten hours. In all contracts for or relating to labor, 
ten hours of actual labor shall be taken to be a day's work, 
unless otherwise agreed by the parties ; and no person shall 
be required or holden to perform more than ten hours' 
labor in a day, except in pursuance of an express contract 
requiring a greater time. — id. s. 14. See s. 14, ante. 



CHAPTER LVI 



GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 



Assignment of ward's property, s. 16 (a). 
Bisding out to labor, s. 7. 
Bond by guardian, ss. 5, )6 (a), 25. 
Children of spendthrifts, s. 7. 
Contracts of guardian, s. 8 (1). 

Of ward, ss. 8, 9. 
Deed by one under guardianship, ss. 8, 9. 

By guardian, s. '26. 
Evidence of sale perpetuated, s. 32. 
Gaming, guardianship for, ss. 3, 4, s. 4 (a). 
Good habits inculcated, s. 7. 
Guardian, general duties of, ss. 16, 16(a). 

Compensation of, s. 18. 

Lien for amount due, s. 18. 

When removed, s. 33. 
Guardianship revoked, s. 34. 
Homestead, purchase of, ss. 12-15. 

Form of petition for, s. 13 (a). 
Husband and wife, ss. 28-31. 
Insane person, guardian for, ss. 1, 2. 

Evidence to prove insanity, s. 1 (a). 



Inquisition and return, s. 1, s. 1 (a). 

Meaning of insane, s. 1 (1). 
Insolvency, decree of. s. 10. 

Balance of debt still due, s. 11. 
Inven * ory, return of, by guardian, s. 6. 
Necessaries, contracts for, s. 8 (1). 
New promise, s. 8 (1). 
Notice of appointment, s. 5. 
Notice of inquisition, s. 1. 
Pension money, s. 16 (a). 
Receipts, guardian to file, s. 19. 
Sale of personal property, ss. 16, 21. 

Of property exempt, s. 21 (1). 
Sale of real estate, ss. 22-32. 
Spendthrift, who is, s. 3. 

Guardian for, s. 4, s. 4 (a). 
Suits by and against ward, s. 17. 

Between guardian and ward, s. 17 (1). 
Void or voidable sales, s. 24 (a). 
Vouchers to be filed, ss. 19, 20. 



1. Insane person. Upon application of any relative or 
friend of any insane (1) person, or of the overseers of the 
poor of the town where he lives, made to the judge of pro- 
bate for the county, that a guardian may be appointed over 
such person, the judge shall cause inquisition, with notice, 
to be made by three suitable persons by him appointed. — 
Gen. Sts. p. 334, c. 167, s. 1. 

(1) The words " insane " or "insane person" shall include every idiot, non compos, 
lunatic, insane or distracted person. — Gen. Sts. c. 1, s. 17. 

A person may be a non compos, by reason of mental imbecility from old age or sick- 
ness, if so great as to render him incapable of conducting his affairs with understand- 
ing.— 4 li. 68; 44 R. 531; 19 R. 140; Digest, p. 176, XI. 

The application may be as follows : 

To the Judge of Probate for the county of ; 

The undersigned, overseers of the poor of the town o^ 
, in said county, respectfully represent that > 



GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 321 

who is living in said town, is an insane person and stands in 
need of a guardian, and they therefore pray that a guardian 
may be appointed over him. 

Dated at said , this — day of , 18 — . 

) Overseers of the Poor 

\ of 



The form of the warrant to make inquisition may be : 

THE STATE OF NEW HAMPSHIRE. 

[l. s.] H ss. To , of , in said county. 

Pursuant to an application by the overseers of the poor 
of said town, you are appointed to make inquisition con- 
cerning , of said town, who is represented to be an 

insane person, and make report. 

You will, after due notice to him, make personal exami- 
nation and careful inquiry into his condition, and examine 
under oath such witnesses as may be produced before you, 
and certify whether in your opinion he is insane. 

Hereof fail not, and make return of your doings at a court 

of probate to be holden at , in said county, on the 

— day of next. 

Given under my hand and the seal of said court, this — 

day of , 18 — . 

, Judge of Probate. 

The form of notice may be as follows : 

To , of the town of , in the county of : 



Pursuant to a warrant from the judge of probate of saicj. 
county (a copy of which is hereto annexed), we will make 

inquisition as therein required, on the — day of next, 

at — o'clock in the noon, at , in said town. 

Dated at said , this — day of , 18 — . 

AB 

C D [ Committee. * 

E F) 

Such notice, with an attested copy of the warrant, should 
be given in person or left at the usual place of abode a 
reasonable time before the day of hearing (14 Mass. R. 222), 
and an affidavit made of the service as in s. 10 (b), (c), p. 
93, ante. 

21 



322 GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 
RETURN OF INQUISITION. 

In compliance with the foregoing warrant, having given 

due notice to the said , we, on the — day of 

instant, made personal examination and careful inquiry 
into his condition, and in our opinion he is insane. 

Dated the — day of — , 18 — . 

AB) 

CD Committee. 

E F) 

(a) It is the duty of the committee to go to the person to whom the inquisition re- 
lates, and diligently inquire as to his capacity. In many cases there can be no diffi- 
culty in ascertaining the fact. But in some cases there may be doubt. The state of a 
man's mind can be known only from what he does and from what he says. Generally 
a conversation for a short time will be sufficient. When that is not satisfactory, inquiry 
should be made into his conduct and the management of his affairs. 

The opinion of an expert, as a physician or the superintendent of an insane asylum, 
is competent, but not others'. — 17 R. 12; 4 R. 68; 8 Mass. 129. Insanity of either par- 
ent, or grand-parent, or brother, or sister, is competent to be considered.— 7 Gray, 71 ; 
American Law Register, July, 1868, p. 556. Whatever may be the mental defect, the 
return should state that the person is or is not "insane." 

2. Decree of insanity, etc. If, upon the return of such 
inquisition and due examination had, it is decreed that 
such person is insane, the judge shall appoint a guardian 
over him ; but no such decree or appointment shall be 
made until he has been cited to appear and show cause 
against the same. — id. s. 2. 

3. Spendthrift. Any person who, by excessive drinking, 
gaming, idleness, debauchery or vicious habits of any kind, 
so wastes, spends or lessens his estate, or so neglects to 
attend to any business of which he is capable as to expose 
himself or his family, or any of them, to want or suffering, 
or the town to which he belongs, in the judgment of the 
selectmen of the town in which he resides, to expense for 
the support of himself or any of his family, shall be deemed 
a spendthrift. — id. s. 3. 

4. Guardian for. Upon complaint thereof in writing, 
made to the judge of probate for the county where such 
person resides, by said selectmen, or by any of his relatives, 
Said judge shall appoint a day of hearing, and if, upon due 
notice and examination had, it appears that such person is 
a spendthrift, said judge shall appoint a suitable person to 
be his guardian. — id. s. 4. 

The form of the complaint may be : 

To the Judge of Probate for the county of : 

The undersigned, selectmen of the town of , in 



GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 323 

said county, respectfully represent that , who resides 

in said town, is a spendthrift, and by excessive drinking and 
idleness so wastes his estate and neglects to attend to any 
business of which he is capable, as, in the judgment of said 
selectmen, to expose himself and his family to want and 
suffering, and the town to which he belongs to expense for 
the support of himself and family, and they therefore pray 
that a suitable person may be appointed to be his guardian. 

Dated at said , this — day of -, 18 — . 

) Selectmen 

> of 



(a) If gaming is the occasion for the appointment of a guardian, it may be so alleged, 
without specifying the kind of games; but if it is by reason of "vicious habits" otber 
than those stated in the statute, there should be some specification. More than one 
cause may in any case be stated. 

5. Guardian to give notice. Every guardian of an 
insane person or spendthrift shall immediately upon his 
appointment give public notice thereof, in some newspaper 
circulated in the vicinity, or in such newspaper as the judge 
shall direct, and in all cases post a notification thereof in 
the town where his ward resides. — id. s. 5. 

He must also give, bond as other guardians. — Gen. Sts. 
c. 165, s. 2. 

The form of notice may be as follows : 

GUARDIANSHIP. 

The undersigned hereby gives notice that he has been 

duly appointed guardian of , of the town of , 

an insane person [a spendthrift], and has given bond ac- 
cording to law. 

Dated at said , this — day of , 18 — . 



6. Inventory. He shall make and return a true and 
perfect inventory of the estate of his ward, as inventories of 
persons deceased are taken. — id. s. 6. 

7. Good habits. Every guardian of a spendthrift shall 
inculcate habits of sobriety and industry in his ward, and 
may employ him or his children in any suitable labor, or 
bind them out to labor by a written contract, for a term 
not exceeding one year. — id. s. 7. 

8. Contracts when void. No bargain or sale of real or 



324 GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 

personal estate, and no contract of any nature whatever, 
made by a person under guardianship, after the appoint- 
ment and during the continuance of such guardianship, 
shall be valid in law (1). 

(1) The statute, however, does not avoid a contract for necessaries.— Digest, p. 391, ss. 
10, 11. 

A new promise by the ward while under guardianship will not take the case out of 
the statute of limitations— 13 Pick. 206 ; but it may be otherwise of a new promise by 
the guardian.— id. ; 12 Cush. 329. See Digest, p. 392, s. 24. 

In general the ward is not liable upon any contract made by the guardian, but the 
guardian is himself liable in his private capacity.— 11 B. 51; 5 Mass. 301; 6 do. 59; 1 
Pick. 317. See also Digest, p. 391, n. 

9. Sales after copy left. No such bargain, sale or con- 
tract shall be valid if made after an attested copy of any 
complaint presented to a judge, upon which a guardian 
shall be appointed, and of the order of notice thereon, shall 
have been filed with the clerk of the town in which the 
person complained of resides, unless the guardian, by an 
instrument under his hand and seal, afterward approve and 
ratify the same. — id. s. 9. 

10. Decree of insolvency. When, upon representation 
of the guardian of any insane person or spendthrift, the 
judge is satisfied that the estate of the ward is not sufficient 
to discharge the just debts due therefrom, he may decree 
that said estate be settled as insolvent ; and thereupon such 
proceedings shall be had, decrees made, appeals allowed, 
suits disposed of, and the accounts of the guardian adjusted 
as in the case of insolvent estates of deceased persons. — id. 
s.10. 

11. Balance of debt good. When any such estate shall 
be settled as insolvent, and a dividend upon the claims of 
creditors is decreed, if the whole claims are not satisfied by 
the decree and payment pursuant thereto, all balances re- 
maining due to the creditors shall survive against the estate 
of the ward during the continuance of the guardianship, 
and for three years thereafter. — id. s. 11. 

12. Purchase of homestead. The judge may, on peti- 
tion after notice, license the guardian of any insane person 
or spendthrift who has a family to purchase with the funds 
of his ward real estate situate in this state, as a homestead 
for his ward and his family. — id. s. 12. 

13. Cost of, limited-. The petition shall state the funds 
in the hands of the guardian belonging to his ward, and 
the license shall limit the amount to be expended for such 



GUARDIANS OP INSANE PERSONS AND SPENDTHRIFTS. 325 

homestead to such sum as the judge shall deem expedient 
and for the advantage of the ward ; in no case to exceed 
the amount in the hands of the guardian at the time of fil- 
ing the petition. — id. s. 13. 

(a) The form of the petition may be as follows : 
To the Judge of Probate of the county of : 

The undersigned, guardian of of , in said county, an insane person [a 

spendthrift], respectfully represents that his said ward has a wife and — minor child- 
ren, but no home for them, and a homestead would be greatly for their interest and 
comfort: "Wherefore he prays for a license to purchase a homestead with the funds of 
his ward, in his hands, which now amount to the sum of dollars and cents. 

Dated at said ,' this — day of , 18—. 

, Guardian. 

14. Oath before purchase. Before making any pur- 
chase under his license, the guardian shall take the follow- 
ing oath, before the judge or some justice of the peace, and 
file the certificate thereof in the probate office : 

" I, A B, guardian of C D, my ward, do solemnly 
swear that in purchasing a homestead for my said ward I 
will exert my utmost endeavors to purchase the same to 
the best advantage of my said ward, without any sinister 
or selfish action whatever." — id. s. 14. 

15. Certificate of selectmen. No purchase of a home- 
stead under such license shall be valid as to such ward, 
unless the guardian shall procure and file in the probate 
office where such license is granted, before completing the 
purchase, the certificate in writing of the selectmen of the 
town. — id. s. 15. 

16. General duties of guardian. He shall take care 
of the person and estate of his ward ; improve his estate 
frugally and without waste, and apply the annual profits 
and income thereof for the comfortable maintenance and 
support of his ward, and his household and family, if any 
he have ; collect his dues, pay his just debts out of his 
property in the most economical manner, and protect his 
rights.— Gen. Sts. p. 340, c. 165, s. 3. 

(a) Neglect to pay the debts, if there is sufficient property, will be a breach of his 
bond.— 8 Gush. 587; 13 Pick. 206; 21 do. 36; Digest, p. 307," ss. 104, 10!>, p. 392, s. 34. 
Pension money is not to be used for such purpose.— 17 Maine, 222. Consent of the 
ward or his friends will not excuse the guardian for any mismanagement. — 4 Allen 
426 ; Digest p. 539, ss. 43-45. An assignment of property of the ward ivith notice, to 
secure a private debt of the guardian, will not bind his sucessor.— 8 Allen, 15; see also 
11 Gray, 42, as to notice. 

A guardian may warn persons of bad character to leave the premises of bis ward; 
and. if they refuse, may cause them to be removed.— 10 II. 247; Digest, p. 342, ss. 19, 
20. 



326 GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 

17. Suits by and against. Every ward shall sue and be 
sued, prosecute and defend, by his guardian (1). — id. 4. 

(1) But the suit is in the name of the ward as plaintiff or defendant.— 6 It. 399; 8 "R. 
569; 21 R 204; 9 R. 93; 4 Mass. 436; 5 do. 300; 14 do. 207; 19 Pick. 506; 10 Allen, 463: 
7 Mass. 96; 16 do. 348; 13 do. 237; 26 Maine 77; 36 do. 155. 

No suit at law can be sustained between guardian and ward while the relation con- 
tinues (Digest p. 15, ss. 109, 110. p. 391, s. 7, p. 394, ss. 63-65); not even for an assault 
and battery by the guardian upon the ward. — 16 Pick 506. 

18. Compensation. Every guardian shall be allowed a 
reasonable compensation (1) for all proper expenses and 
services in the discharge of his trust. The balance of the 
guardian's account due to him shall be a lien upon all the 
estate of his ward, real and personal, not disposed of by 
the guardian, for the recovery of which, after he ceases to 
be guardian, he may maintain an action for money paid 
and advanced. — id. s. 7. 

(1) Settlement of account, see Digest, p. 392, III. 

He cannot be allowed in his account for an injury to his property bv the ward; 
hut upon the decease of the ward may sue his administrator therefor. — 9 Gray 84, 86. 

19. Touchers to be filed. Every guardian shall take a 
receipt of his ward, or of his legal representative to whom 
he shall pay or deliver the property of such ward, and file 
the same in the probate office, to be there preserved, the 
time of its being so filed to be certified upon it by the reg- 
ister. — id. s. 8. 

20. Penalty for neglect. Any guardian may be cited 
by the judge, upon complaint of any surety or his repre- 
sentative, to file such receipt in the probate office ; and if 
he neglects or refuses so to do, he shall forfeit twenty dol- 
lars, to the use of the complainant, and the like sum for 
every thirty days' neglect afterward, unless the judge, on 
a hearing, shall certify the reason of the omission to be 
sufficient. — Gen. Sts. p. 341, c. 165, s. 9. 

21. Sale of personal estate. Any guardian, upon re- 
turn of the inventory of the personal estate of his ward, 
may apply (1) to the judge by petition for the sale thereof, 
and said judge may by license authorize the sale thereof at 
auction ; and if said guardian has conducted the sale of 
said property with fidelity, the judge in the settlement of 
the account of said guardian shall only charge him with 
the amount of such sales. — id. s. 10 ; s. 16, ante. 

(1) The form of the petition may be: 

To the Judge of Probate for the county of : 

The undersigned, guardian of , of the town of— , in said county, an insane 



GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 327 

person [a spendthrift], respectfully represents that it will be for the interest of said 
ward, and all persons interested in his estate, that the personal property of said ward 
(an inventory* of which has been duly returned) be sold at auction, and he therefore 
prays for a license authorizing such sale. 

Dated at said , this — day of , 18—. 

, Guardian. 

Perhaps he may sell without a license.— 2 Pick. 243; 26 Maine, 77. Property exempt 
from attachment is not to be sold to pay debts.— 17 Maine, 222. 

22. Sale of real estate. The judge may authorize 
such guardian to sell at auction the real (1) estate of his 
ward, or any wood or timber growing thereon, whenever 
the sale thereof is necessary for the support of the ward 
or his family, or conducive to his or their interest. — id. 

(1) There may be a sale of his homestead.— 8 Gray, 432. 

The form of petition may be : 
To the Judge of Probate of the county of : 

The undersigned, guardian of , of , in said 

county, a spendthrift [an insane person] , respectfully rep- 
resents that his said ward is the owner (2) of certain real 
estate in the town of , bounded and described as fol- 
lows : [here insert description] and that the sale of said land 
is necessary for the support of said ward and his family, and 
he therefore prays for a license authorizing such sale. 

Dated at said — , this — day of , 18 — . 

, Guardian. 

(2) Effect of a misdescription of the interest— see 43 P. 313; Digest p. 392, s. 29. 

23. If the sale of timber on the land is desired, the 
petition will state that the sale of the wood and timber 
growing on said land is necessary, &c. If not necessary 
for the support of the ward, the petition will allege that 
the sale will be " conducive to his interest." 

24. Oath of guardian. Before making sale under such 
license, the guardian shall take the following oath, before 
the judge or any justice of the peace, and shall file the 
certificate thereof in the probate office before the settle- 
ment of his account : 

" I, A B, guardian of C D, etc., my ward, do solemn- 
ly swear that in disposing of the estate of my said ward, 
for which I have obtained license, I will use my best judg- 
ment in fixing on and advertising the time and place of 
sale, and will exert my utmost endeavors that the same 
shall be sold in such manner as shall be of the greatest 



328 GUAKDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 

advantage to my said ward, without any sinister or selfish 
views whatever." 

(a) The sale will be void or voidable if the guardian has not given bond and taken 
the oath— 5 Pick. 479; or if he is directly or indirectly the purchaser. — Digest p. 312, 
ss. 192-194; 2 R. 218, 221, 225; 31 R. 70; 38 Maine, 47. 

25. New bond. If the judge be not satisfied that the 
guardian has already given bond sufficient to bind him to 
conduct with fidelity in the sale, and to account and re- 
spond for the proceeds thereof, he shall, before he issues 
license, require of such guardian a bond sufficient for that 
purpose. — id. s. 13. 

26. Deed to purchaser. Every guardian so licensed 
and sworn, having so advertised and sold, may execute a 
valid conveyance of the estate sold to the purchaser. — id. 
s. 14. 

27. Sale within two years. No license to any guardian 
shall be available to sustain any sale under it unless made 
within two years after the grant of such license. — id. s. 15. 

28. Wife may join in sale. The wife of any man un- 
der guardianship may join with the guardian in any deed 
for the conveyance of any real estate of her husband, and 
thereby release and waive her dower and homestead. — id. 
s. 16. 

29. Husband may join. The husband of any woman 
under guardianship may join with the guardian in any 
deed for the conveyance of any real estate of his wife, and 
thereby release and waive his estate by the curtesy. — id. s. 
17. 

30. If both under guardianship. When any married 
man and his wife are both under guardianship, and the 
guardian of the husband has obtained license from the 
judge to sell real estate of his ward, the guardian of the 
wife may, without license, join in the sale, and release his 
ward's interest ; and when the guardian of the wife shall 
have obtained license to sell any real estate of his ward, 
the guardian of her husband may, without license, join in 
the deed and release all the interest of the husband. — id. 
s. 18. 

31. Division of proceeds of sale. When a married 
woman, in person or by guardian, shall join with the 
guardian of her husband in a deed releasing her right of 
dower and the homestead exemption in any real estate of 



GUARDIANS OF INSANE PERSONS AND SPENDTHRIFTS. 329 

her husband, or when a husband, in person or by guardian, 
shall join with the guardian of his wife in the sale of her 
real estate, and release the interest of the husband therein, 
the proceeds of the sale shall be equitably divided, as the 
judge may direct, according to the value of the respective 
interests of the husband and wife in the estate sold ; and 
the respective guardians shall receive and be charged ac- 
cordingly.— Gen. Sts. p. 342, c. 165, s. 19. 

32. Evidence of sale perpetuated. Any guardian, pur- 
chaser, or other person interested, may petition the judge 
to perpetuate the evidence of facts set forth in such peti- 
tion, relating to any proceeding connected with any guard- 
ianship ; and the judge, after due notice, may decree that 
all or any of such facts are proved, and such decree shall 
be conclusive evidence of those facts. — id. s. 20. 

33. Guardian, how removed. The judge, upon peti- 
tion (1) and after due notice, may remove any guardian, 
whenever in his opinion it may be necessary or expedient, 
and appoint another in his stead. — Gen. Sts. p. 340, c. 165, 
s. 5. 

(1) The form of a petition for removal may be : 
To the Judge of Probate for the county of : 

The undersigned, selectmen of the town of , respectfully represent that , 

of said town, who has been appointed guardian of of said town, a spendthrift, 

mismanages the affairs and wastes the estate of his said ward, and is incompetent to 
discharge the duties of his trust, and they therefore pray that he may be removed and 
another appointed in his stead. 

Dated at said this day of , 18—. 

) Selectmen 

» \ of 



Such a petition may also be presented by any relative or friend, and may allege any 
cause that shows that a change is necessary. 

34. Guardianship revoked. If the cause for which any 
guardianship was granted has ceased or is removed, such 
guardianship, upon like petition (1) and notice, shall be 
revoked. — id. s. 6. 

(1) The form of petition may be : 
To the Judge of Probate for the county of : 

M H, of , in said county, respectfully represents that at a court of probate 

holden at , in said county, on the — day of , 18—, it was decreed that your 

petitioner was an insane person, and ■ of , in said county, was duly ap- 
pointed his guardian, and took upon himself that trust. 

Your petitioner, as he believes, is no longer insane, and he therefore prays that said 
guardianship may be revoked. 

Dated at said , this — day of , 18—. 

M H. 

A petition by one who was a spendthrift should allege that the petitioner has become 
temperate and industrious and correct in his habits, and that the causes for which the 
guardian was appointed have ceased. 

Such petition may be in the name of the ward, and he may appeal from an adverse 
decision upon his petition.— 1 Mass. 543. 



330 



SETTLEMENT OF PAUPERS. 



CHAPTER LVII 



SETTLEMENT OF PAUPERS. 



Aliens, settlement of, s. 8 (1). 
Agreement for support, s. 11 (b). 
Birth, settlement by, ss. 3, 7, 14. 
Burden of proof to show marriage, s. 
2 (d). 
To show taxing, s. 13 (a). 
Change of town lines, s. 12. 
Constitutional law, s. 18 (a). 
County paupers by repeal, s. 1 (a), (c). 
Division of town, settlement by, s. 1 

(a), s. 11 (a), (b). 
Divorce, effect upon settlement of child, 
ss. 6, 6 (a). 
Effect upon settlement of wife, s. 2 (f). 
Emancipation, effect of, ss. 4, 9 (b). 

What is an emancipation, ss. 5, 6 (a). 
Estopped, when town shall be, s. 13 (1). 
Former settlements abolished, ss. 1 

(b), 9(c), 18. 
Four years' residence, settlement by, 
s. 8. 
Commencement of term, s. 8 (a). 
Illegal assessment, s. 8 (e). 
Payment of tax, s. 8 (f), (g), (h), (i). 
Personal estate, s. 8 (b), (c). 
Real estate, s. 8 (b), (d). 
Guardian, payment by, s. 8 (i). 
Home, for the purpose of settlement, ss. 

16, 16 (a), (b), (c), (d). 
Illegal assessment, effect of, ss. 8 (e), 

(f), 13 (4). 
Illegitimate children, settlement of, 

ss. 7, 9 (c). 
Incorporation of town, settlement by, 

ss. 9, 10, 14 (a), (b). 
Insane persons, settlement of, ss. 8 (e), 

16 (a). 
Laws in force for gaining settlements, s. 

1(c). 
Legitimacy by subsequent marriage, s. 

15. 
Legitimate children, settlement of, s. 
3. 
After death of father, ss. 3 (b), 6(a). 
Born in another state, s. 3 (a). 
If emancipated, ss. 4, 5. 
Subsequent marriage of mother, ss. 6 

(a), 15. 
Upon a divorce, s. 6. 
Marriage, age of consent, s. 2 (b). 
Fraud in inducing, s. 2 (a). 

1. Since Jan. 1, 1840. By s. 23 c. 1, of the Laws of 1868, 
no town shall be liable for the support of any person unless 
he, or the person under whom he derives a settlement, shall 
have wholly gained a settlement therein since the first day 
of January, 1840. 

(a) By previous statutes the period had been limited first to January 1, 1796, and 
then to January 1, 1820. The effect of these statutes was to abolish all settlements pre- 
vious to the time stated, and all paupers who lose a settlement thereby become a 
county charge.— Digest p. 515, ss. 75-79. 



Out of the state, s. 2 (b). 

Paupers, marriage of, s. 2 (a). 

Proof of marriage, s. 2 (d), (e). 

Separation after marriage, s. 2 (c). 
Married women, settlement of, ss. 2, 8 

(1), 16(e). 
Personal estate for settlement, s. 8. 

Commencement of ownership, s. 8 (a). 

Contract for deed, s. 8 (c). 

Contract for support, s. 8 (c). 

Distributive share, s. 8 (c). 

Ownership during four years, s. 8 (a), 
(b). 
Payment of tax, s. 8 (f), (g), (h), (i). 

By guardian, s. 8 (i). 

Time of payment, s. 8 (h). 
Pauper has no home, s. 16 (b), (c), (d). 
Presumption of payment, s. 8 (g). 
Real estate for settlement, s. 8. 

Commencement of ownership, s. 8 (a), 
(b). 

Freehold not necessary, s. 8 (d). 

Meaning of real estate, s. 8 (d). 

Tenancy at will insufficient, s. 8 (d). 
Repeal of statute, effect of, s. 17. 
Residence, settlement by, ss. 9-12. 

Meaning of residence, s. 16. 
Settlement, how lost, s. 18. 

Is by statute only, s. 19. 

Not revived bv repeal, s. 1 (c). 

Since Jan. 1, 1*840, ss. 1, 1 (a). 
Seven years' residence, settlement by, 
s. 13. 

Actual payment of tax, ss. 8 (f), (g), (h), 
13 (3). 

Illegal assessment, effect, s. 13 (4). 

Repeal of statute, effect of, s. 17. 

Residence during the whole term, s. 
13 (2). 

Taxation during the whole term, s. 
13(2). 
Statute alone gives settlement, s. 19. 

To be strictly construed, s. 19. 
Subsequent intermarriage, effect of, 

s. 15. 
Town may be estopped, s. 13 (1). 
Town office gives no settlement, s. 1 (c). 
Union of towns, settlement by, s. 10. 
Vested rights not affected by repeal, s. 
18. 



SETTLEMENT OF PAUPERS. 331 

(b) The act of 1868 (which took effect September 15, 1861), would sot affect euits tben 
pending, nor a case where supplies had been furnished and notice given prior to that 
time.— Digest, pp. 161, 162, ss. 99, 108; 44 ft. 113. 

(c) The laws in force since Jan. 1, 1840, have been the act of Dec. 16, 1828, Rev. Sts. 
c. 65; the acts of 1861, c. 242 and c. 243; Gen. Sts., c. 73; and the act of 1868. Besides 
the nine modes of gaining a settlement given in the General Statutes of 1867, a settle- 
ment until July 4, 1861 (c. 2483), mighb have been gained by being admitted as an in- 
habitant and serving one year in a town office; but all such settlements were in effect 
abolished by the act of 1861, and no previous settlements were thereby revived. — Digest, 
p. 515, ss. 75—59. 

In determining whether a settlement has been gained since Jan. 1, 1840, it may for 
all practical purposes be assumed that the law has been all along as it is now, except 
as otherwise noted in this chapter. 

(d) A settlement since Jan. 1, 1840, by the division of a town, as the law has been 
held under a similar act, does not meet the requirements of this statute. — 13 R. 606; 20 
R. 457. 

2. A married woman shall have the settlement of her 
husband, if he has or shall acquire any within this state ; 
otherwise her settlement at the time of her marriage shall 
continue. — Gen. Sts. p. 155, c. 73, s. 1, i. See s. 9 (b),post. 

(a) When a marriage takes place between a female pauper of one town and a male 
pauper of another town, the settlement of the female is changed to the latter town, if 
the paupers have entered into the marriage contract without force, fraud, bribery, or 
any undue influence on the part of the former town. — 2 R. 263; Digest, p. 516, ss. 84, 
85; 4 Allen, 458. 

The marriage of a pauper, whose settlement is in controversy, or that of any ances- 
tor from whom the settlement is alleged to have been derived,' may be impeached by 
any interested town or third party, by showing that it was fraudently obtained, or that 
the parties were incapable of legallv making such contract. — 44 R. 589; Digest, p. 466, 
s. 20 ; but see 2 R. 263. 

After the female had charged the male pauper with being the father of an illegitimate 
child with which she was then pregnant (a contract to marry having been made, and 
the bans published), held, that it was not a fraud, or any other offense, for a selectman 
of the town in which the female was settled, to advise concerning the solemnization of 
the marriage, and to go for a clergyman to perform the ceremonv.— Digest, p. 516, 
s. 85. 

(b) It makes no difference that the marriage was solemnized without this state, nor 
what was the age of the parties, if competent to contract. — 9 Mass. 203; 12 do. 363. 

The age of consent in this state is twelve for the female and fourteen for the male. — 
Gen. Sts. p. 332, c. 161, s. 14. 

(c) The settlement of the wife, until a divorce, follows that of the husband, notwith- 
standing an abandonment or separation for any cause, unless the wife, as she may in 
this state, gain a settlement in her own right by the ownership of property and the 
payment of taxes thereon.— 13 Maine, 228; 53 do. 59; 17 Yt. 493. 

(d) The party who would avoid the effect of an apparently legal marriage has the 
burden of proof to show the facts that invalidate it. — 18 Maine, 205,210; Digest, p. 
331 (e). 

But if a, prior marriage is shown, the burden of proof is shifted, and no presumption 
of innocence is sufficient for this purpose. — id.; 1 Pick. 506; 6 Maine, 148; 7 Met. 472; 
Digest, p. 330 (c). 

(e) Cohabitation, acknowledgement, and reputation of marriage, which in all civil ac- 
tions are upon general principles evidence of a marriage, are, if continued three years 
and until the death of one of the parties, by Gen. Sts. c. 161, s. 16, and Rev. Sts. c. 149, 
s. 11, made conclusive. 

The statutes cannot have a retro-active effect ; hence, when all the facts of cohabitation 
and reputation occurred prior to March 1, 1813, such facts are only evidence to be 
weighed by the jury. — 19 R. 256; Digest, p. 468, s. 14. 

(f) A divorce, unless for a cause which shows that the marriage was never valid, can- 
not defeat a settlement acquired before the divorce. — 15 R. 423; 53 Maine, 54; 13 do. 
225; 9 Mass. 203. 

3. Legitimate children shall have the settlement of 
their father if any he has within this state, otherwise the 
settlement of their (1) mother, if any she has, until they 
gain a settlement of their own ; but in case of divorce, 



332 SETTLEMENT OF PAUPERS. 

when the parents have no settlement, and the custody of 
the children is left in the father, they shall not follow the 
settlement which the mother may acquire by any subse- 
quent marriage. — id. s. 1, n. 

(a) If a person having a settlement in this state remove into another state and there 
have children born unto him, thev take his settlement upon coming here. — 8E. 532; 
Digest, p. 515, s. 70; 31 Vt. 459, 466. 

(b) A child having a settlement by its father cannot upon his death acquire the set- 
tlement of the mother, but retains the former settlement.— 6 Cush. E,. 528 ; 7 Pick. 140 ; 

29 Vt. 396. 

4. Emancipation, effect of. A minor, if emancipated, 
shall not take an after-acquired settlement from the parents, 
but may acquire one in his own right whenever settlement 
depends upon the incorporation, division or union of towns, 
or on the change of town lines. — Laws of 1868, c. 1, s. 16. 
See also, 3 R. 331 ; 5 R. 322 ; 13 Mass. R. 469 ; 30 Maine 
R. 470. Such minor of course retains the settlement of 
his father or mother, as the case may be, until he gains one 
in his own right. 

An adult, if not emancipated, follows the settlement of the 
parent until he acquires one in his own right ; but it is 
otherwise if emancipated, although continuing to reside 
with the parents.— 37 R. 438 ; Digest, p. 502 ; 6 Allen, 31 ; 
25 Maine, 281 ; 3 Pick. 173. 

5. What is emancipation. A minor shall be emanci- 
pated, within the meaning of this act, by the death or per- 
manent insanity, or confinement in the state prison of this 
state, of both parents, or of the father only, and the subse- 
quent marriage of the mother ; by the marriage of the 
minor ; by his having his time given him ; and whenever 
the right of his custody, control and services shall, by 
indenture or other instrument under seal, be transferred to 
a third person, until twenty-one, or for a term of years, 
unless such right shall be again actually resumed by the 
parent, and such minor become a part of his family. — Laws 
of 1868, c. 1, s. 17. See also, s. 6, post. 

What would be deemed an emancipation of a minor in 
the absence of a statute provision is a matter of great 
uncertainty.— 3 R. 331 ; 5 R. 322 ; 6 R. 166 ; 15 R. 480 ; 

30 R. 274 ; 44 R. 293 ; 8 Greenl. R. 202 ; 3 Greenl. 390 ; 4 
Shepley, 427 ; 37 Vt. R. 529 ; 39 do. 17, 21 ; 20 J. R. 282, 
451 ; 48 Maine R. 465 ; 40 do. 106 ; 30 do. 470 ; 18 Pick. 
R. 264 ; 14 do. 510 ; 4 Allen, 458 ; 6 Cush. (Mass.) R. 



SETTLEMENT OF PAUPERS. 333 

458 ; 13 Mass. 472 ; 3 do. E. 356 ; 8 do. E. 482 ; 20 J. E. 
456. 

After twenty-one. Although, as a general rule, children 
are emancipated when they arrive at the age of twenty- 
one years, yet when it is fit and proper that they should 
remain after that time under the control of a parent, on 
account of infirmity either of body or mind, so long as they 
remain they are not emancipated. — 3 R. 531 ; Digest, p. 
503, ss. 17, 18 ; 3 Greenl. 388 ; 15 Mass. 237. 

6. In case of a divorce, the minor children shall follow 
the after-acquired settlement of the parent entitled to their 
legal custody, so long as such right continues, unless other- 
wise provided by law ; and, when neither parent has a right 
to the control and services of such children, they shall be 
considered emancipated. — Laws of 1868, c. 1, s. 18. See 
ante, s. 5 ; 16 Mass. 139 ; 13 do. 472 ; 4 do. 496. 

Under this act children will not take the settlement of their mother by a second mar- 
riage, for by her marriage she loses her right to their ''control and services."— 30 R. 
274; 14 Pick. 510; 6 Mass. 275; 4 do. 675. They were held to take such settlement in 1 
Pick. 197; 4 Greenl. 47; 18 Pick. ; but see 3 Greenl. 392; 16 Mass. 52. 

7. Illegitimate children shall have the settlement of 
their mother, at the time of their birth, if any she has 
within the state (1). — id. in. 

(1) They do not take her a/Yer-acquired settlement.— 3 R. 316; Digest, p. 515, s. 74; 52 
Maine, R. 216, 219; 35 do. 411; 7 do. 270; 5 do. 123. See post, s. 9 (c). 

8. Four years' residence, etc. Any person (1) of the 
age of twenty-one years, having real estate of the value of 
one hundred and fifty dollars, or personal estate of the 
value of two hundred and fifty dollars, in the town where 
he dwells and has his home, and paying all taxes duly 
assessed on him and his estate for four years in succession, 
shall thereby gain a settlement in said town. — id. iv. 

(1) This applies to married women.— Laws of 1868, c. 1, s. 20; 37 R. 437; 45 R. 423. 
And to a non compos, or insane person. — 37 R. 437; Digest, p. 514; 45 R. 423; Digest, 
p. 427, s. 5; 51 Maine, 542: 48 do. 332; 45 do. 537; 33 do. 193; 24 do. 112; 6 Allen, 510. 
And to an unnaturalized foreigner .—30 Maine, 520; 3 do. 455; 30 Vt. 722, 728. 

(a) It is immaterial what time in the year the ownership commenced, if continued 
four years from that time.— 37 R. 438; 46 R. 14; Digest, p. 514, s. 39. 

But it is not enough that the individual was taxed, and paid the tax upon the estate 
of the required amount, if he parted with his title before the full term of four years. — 
3 R. 378 ; Digest, p. 514. 

(b) He must have had real estate of the value of $150 four years, or personal estate 
of the value of $250 four years; it is not enough that he had $150 of real estate for a 
part of the time, and $250 of personal estate for the remainder of the four years.— 36 R. 
395; Digest, p. 514, s. 38. 

(c) A contract for personal support, although secured by a mortgagees not either 
real or personal estate within the meaning of the statute, and will not give a settle- 
ment.— 36 R. 371 ; Digest, p. 184, s. 331. But a contract in writing entitling the prom- 



334 SETTLEMENT OF PAUPERS. 

isee, upon the payment of a certain sum, to a deed of real estate, or else to damages, 
will give him a settlement if his interest is of the required value.— 7 R. 250; 11 R. 571 ; 
Digest, p. 514, s. 45. 

A person entitled to a share of a deceased person's estate, of sufficient value, may 
gain a settlement thereby, though there has been no decree of distribution.— 37 R. 438; 
Digest, p. 514, s. 48. 

(d) A freehold interest was formerly held to be requisite, but by s. 21, of c. 1 of the 
Laws of 18G8, the words "real estate" in the settlement act "shall include lands, tene- 
ments, hereditaments, and all rights thereto and interests therein." 

But a tenancy at will is not real estate.— 24 R. 484 ; 11 Cush. 292. 

Possession is evidence of title.— 20 R. 505; Digest, p. 514, s. 47; 1 Gray, 620; 11 Mass. 
327. But if the occupation is by mistake and without any claim of title, it has been 
held that it will not give a settlement. — 9 Allen, 137. 

(e) Proof that the assessment was illegal will not defeat a settlement under this 
clause.— 41 R. 438 ; Digest, p. 514, s. 50. 

No assessment is requisite under this clause. — id. 

(f) The whole legal tax must have been paid or tendered. Payment of $3.00 upon a 
tax of $3.03 is insufficient.— 21 R. 320. 

But where, in such a case, the collector called upon the tax-payer without his list, 
and being uncertain as to the amount, said that if the tax -payer would pay him three 
dollars he would cross out the tax, and this was done accordingly, and the tax crossed 
out, and the collector afterwards paid the three dollars and three cents to the town, it 
was held, a payment of the whole tax by the pauper.— Lisbon vs. Bath, 23 R. 10. 

A negotiable promissory note, payable to a town for the amount of a tax, will not be 
payment of the tax so as to give the maker a settlement in the town, even if the select- 
men agree to receive it in payment of the tax.— Jaffrey vs. Cornish, 10 R. 505; Digest, 
p. 13, s. 30. 

(g) Payment may be presumed after twenty years if there is nothing to rebut it. — 
Digest, p. 333, s. 161. And this presumption exists although the person died within a 
year after the assessment.— 28 R. 75; Digest, p. 333, s. 161. 

But the question of payment is still for the jury. The poverty of the party may be 
shown, and this may be met by evidence of his ability to pay the taxes; and any other 
evidence tending to show pavment or the reverse is admissible. — 38 R. 268; 47 R. 275; 
40 R. 478 ; 46 R. 181; Digest, p. 330, s. 93. 

(h) The statute does not require that payment be made within the year of the as- 
sessment, and a tender to the collector at any time before the tax has been abated, will 
give a settlement, if not induced by fraud.— 46 R. 11 ; 20 R. 506 ; Digest, p. 514, ss. 53, 
54. 

(i) If a person under guardianship as a lunatic has the amount of property required 
for a settlement, which is taxed to the guardian, who pays the taxes, the ward will 
gain a settlement.— 37 R. 437; Digest, p. 514, s. 53; 15 Mass. R. 237; 48 Maine, 332. 

9. Incorporation. Any person (1) dwelling and having 
his home (2) in any unincorporated place, at the time when 
the same shall become incorporated into a town, shall there- 
by gain a settlement therein. — id. v ; Digest, p. 514, s. 
57-63. 

(1) See s. 4, ante. 

(2) See ante, pp. 49-54. 

/a) The incorporation gives the settlement without any action of the town. — 34 R. 
266 ; Digest, p. 515, s. 62. 

(b) Minors not emancipated, and married women, cannot have a settlement in this 
mode distinct from their parents or husbands.— 1 Greenl. R. 93; 2 Fairfield, 455; 16 
Maine. )39; 53 do. 55, 59; 13 do. 225; 1 N. H. R. 473; ante, p. 50, s 18, p. 52, s. 24. 

But it is otherwise of a minor who has been emancipated . — ante s. 4; 5 R. 350; 1 R. 
264; 49 Maine R. 106; 30 do. 470; 18 do. 415; 16 do. 427; 3 Greenl. 220. See also, s. 16, 
post, as to aliens or insane persons. 

(c) Upon the principles declared in 1 R. 260, 263, an illegitimate child of seven years 
of age would be considered emancipated, and might acquire a settlement in its own 
right under s. 9, ante, but 12 Mass. 383 is the other way; and see 8 R. 418. 

10. Union of towns. If two or more towns shall be 
incorporated into one town, any (1) person having his 
settlement in either of such towns shall have his settlement 
in the town so incorporated. — id. vi. 

(1) Sees. 16, post. 



SETTLEMENT OF PAUPERS. 335 

11. Division of town. Upon the division of any town, 
any person having his settlement therein shall thereafter 
have his settlement in that town in which his last dwelling- 
place shall have been. — id. vn ; Digest, p. 515, ss. 63, 
64. 

(a) A town is " divided " within the meaning of this clause whenever any portion of 
it is separated from the rest, whether the severed portion is incorporated into a new 
town or annexed to an old one. — 32 R. 245; Digest, p. 515, s. 64; 42 Maine, 314; 1 
Greenl. 129 ; 7 Mass. 156. 

(b) If upon the division of a town, the two towns by an agreement apportion the 
paupers by name and support them accordingly, this does not effect the settlement of 
the paupers or that of any one derived from them, though the contractual be binding. 
—49 Maine, 550, 554; 15 Mass. 261. 

12. Change of line. If the dwelling-house or home 
(1) of any person residing but having no settlement in 
any town, shall by act of law fall within the limits of any 
other town, such person shall acquire a settlement in such 
last named town in the same time and manner as he would 
have done in the former town if no such change had taken 
place. — id. vm. 

(1) See ante, s. 9 (a), (b), pp. 49-54; s. 16, post. 

13. Seven years' residence. Any person of the age of 
twenty-one years, who shall have resided (1) in any town 
in this state, and, being taxed for his poll for seven years 
in succession, (2) shall have paid (3) all taxes legally (4) 
assessed on his poll and estate during said term, shall 
thereby gain a settlement in such town. — id. ix. 

(1) A legal and not a mere personal residence is intended. See s. 16, post. 

If the town has exercised jurisdiction over the pauper's place of residence during the 
whole period, it will be estopped to deny that it was within its limits, especially if in 
consequence of such claim the other town has altered its conduct in relation to the 
pauper.— 2 R. 242; Digest, p. 322, s. 41; 30 Maine 504; 13 do. 442; 6 Cush. 320; 30 Vt. 
504; 16 do. 422. 

(2) The residence must have continued during the whole time. 

The omission of a single year of the seven, in taxing or paying, and whether by ac- 
cident or design, will' prevent a settlement.— Digest, p. 513, ss. 22. 23; 10 Met. 115. 

The tax must have been assessed against the pauper personally. — 30 R. 71, Digest, 
p. 513, s. 25. 

Taxing is not presumed, but must be proved.— Digest, p. 513, s. 27. 

Interruption by repeal, see s. 17, post. 

(3) Payment must be made by the person himself or by some one at his request, or 
with his assent, so as to render it his act.— 30 R. 76; Digest, p. 513, ss. 34, 35. 

If a person in possession of land belonging to another has been taxed for it with Ms 
assent, the tax must be paid bv him or he gains no settlement. — 45 R. 264; Digest, p. 
*20, ss. 49, 50. See also as to payment of tax. ante. s. 8 (f), (g), (h), (i). 

(4) If a tax has been actually assessed and paid and retained until the person has 
become a pauper, it seems that the town will not be permitted to show that the tax 
was ihegal in order to defeat the settlement.— 41 R. 442; 2 R. 242; 8 Pick. 408; Digest, 
p. 322, s. 41, p. 323, s. 62, p. 513. s. 28. 

If but part of the tax is legal, pavment of such part is sufficient.— 21 R. 320; Digest, 
p. 513, s. 31. 

14. Birth, settlement by. No person shall gain a set- 



336 SETTLEMENT OF PAUPERS. 

tlement by birth in any town in which neither of his 
parents then has a settlement. — id. s. 2. 

15. Subsequent intermarriage. The legal settlement 
of any person born before the marriage of his parents, and 
before (1) the third day of July, I860, shall not be changed 
by the subsequent intermarriage of his parents. — id. s. o. 

(1) But if born after that date the rule will be otherwise, for by the Act of that date 
and by Gen. Sts. c. 161, s. 15, the children are made " legitimate'' by the subsequent 
intermarriage of the parents. 

16. The legal residence or home of an adult for the 
purpose of gaining a settlement, is in general governed by 
the same rules (except as to the six months' residence) as 
those which determine the home of one for voting. See 
pp. 49-54, ante. 

(a) A non compos or insane person, may have a home for the purpose of gaining a 
settlement and may change his home by his own voluntary act, if he has sufficient in- 
telligence for that purpose, although generally incompetent to contract. — 45 R. 423; 
Digest, p. '290, s. 12, p. 427, s. 5; 51 Maine, 542; 48 do. o32; 45 do. 537; 33 do. 193; 24 
do. 112; 6 Allen, 510; ante, p. 55, s. 25. 

(b) By s. 19, c. 1, of Laws of 1868, " no person shall have a home for the purpose of 
gaining a settlement while assisted as a pauper." This enactment is only declaratory 
of the law as hel in numerous cases.— 47 K. 179; 4 Allen, 575; 12 Met. 35; 3 do. 428; 
21 Pick. 233; 12 do. 1; 13 Mass. 460; 52 Maine, 541; 21 do. 395; 16 do. 137; 35 Vt. 232. 

(c) Nor can the father or mother of an unemancipated child, though more than 
twenty-one years of age, acquire a settlement by residence and payment of taxes 
while such child is a member of their family, and supported as a pauper by another 
town. — 47 K. 179. If a father is unable to support his unemancipated minor children, and 
they become chargeable, he thereby becomes a pauper. — 49 Maine, 555; 31 do. 134; 19 
do. 491 ; 47 N. H. 184, and cases cited. 

But supplies furnished by the town to a minor child without the knowledge or consent 
of the father, and while the father is able to support him, will not prevent the father 
from gaining a settlement.— 32 Maine, 60, 63. 

The fact that the town paid the expenses of a minor supported at the asylum for 
the insane a portion of this term of four years, does not prevent the father from gain- 
ing a settlement, it not appearing that he was not of sufficient ability to refund. — 46 
R. 11, 14. 

(d) A child after he is bound out by the overseers of the poor is not a pauper, and 
may gain a settlement where a settlement depends upon residence only.— 1 Fair. 356, 
360. 

17. Repeal, effect of. No settlement partially gained 
shall be considered to have been interrupted or defeated by 
the repeal of any former statute (1) by a new statute con- 
taining the same provisions for acquiring a settlement.- — 

' Laws of 1868, c. 1, s. 22. 

(1) The law was held otherwise before this act.— 46 R. 180; Digest, p. 513, ss. 35, 36- 
The act in this particular at least is retrospective except where rights had become 
vested. See ante, s. 1 (b). 

18. Settlement, how lost. Every settlement shall con- 
tinue until a new settlement is gained in this state ; and 
upon gaining such new settlement any former settlement 
shall be lost. — Gen. Sts. p. 155, c. 73, s. 5. 

(a) The legislature have power by a general law to change existing settlements but 
not to affect a vested private right, as where supplies have been furnished and notice 
given before the change in the law.— 44 R. 113 ; 2 R. 102 ; Digest, p. 161, s. 99, p. 162, s. 
108. See ante, s. 1 (b), s. 17. 



COUNTY PAUPERS. 



337 



19. By statute only. By Gen. Sts. c. 73, s. 1, a legal 
settlement may be gained in the manner therein stated and 
not otherwise, and our statutes have contained a similar pro- 
vision since 1796. Statutes concerning paupers must be 
construed strictly .—47 R. 276 ; 3 R. 82 ; 46 R. 180 ; 44 R. 
28 ; 21 R. 327 ; 10 R. 352 ; 35 Vt. 498 ; 9 Allen, 210 ; 10 
Met. 115 ; Digest, p. 513, ss. 15, 16. 



CHAPTEE LVIII . 



COUNTY PAUPERS. 



accoukt to be furnished, s. 1. 

Affidavit to be furnished, ss. 1, 2. 

Binding out and employing pau- 
pers, s. 5. 

Bringing in from another county, 
ss. 12, 13. 
From another state, ss. 8, 9. 

Clerk of court, bond to be filed with, 
s. 11. 

County paupers, who are, s. 16. 



Master of vessel to give bond, ss. 9, 
10, 11. 
Form of bond, s. 9 (a). 
Order for removal to another 
county, ss. 4, 13. 
Petition for, s. 13 (a). 
Order for removal to another 
state, s. 14. 
Application for, s. 14 (a). 
Warrant for, s. 14, (b). 
Remedy over by county, s. 3. 
Towns ceasing to be organized, s. 6. 

1. Account to be furnished. When any poor person 
for whose support no person or town in this state is charge^ 
able shall be relieved or buried at the expense of any town, 
the overseers of the poor, within one year thereafter, or, in 
case a suit therefor has before the termination of said year 
been commenced against any town or person, within six 
months after the termination thereof, may present an ac- 
count of all moneys so expended to the county commission- 
ers of the county in which such town is, with proper 
vouchers (1) ; and they shall allow such sum as they think 
reasonable, to be paid out of the treasury of the county. — 
Gen. Sts. p. 157, c. 75, s. 1. 

(1) If the supplies are furnished by the overseers, their affidavit is ordinarily a suffi- 
cient voucher. If money is paid to other persons their receipts should also be furnished, 
and an affidavit, as required in s. 3, post, if it has not been previously furnished. 
The form of the account may be : 

The county of to the town of , debtor : 

To board of , at the town farm, from Jan 1, 1869, to March 

1, 1869, at $2.50 per week, $21.00 

March 6, To one pair of boots furnished said , .... 4.00 

" " To one pair of flannel drawers, for said , . . . 2.50 

" " To one lb. of tea furnished said , 1.25 



22 



$28. 75 



338 COUNTY PAUPERS. 

We hereby certify that the said was, during the time specified in said ac- 
count, a poor person in said town of , unable to support himself, and standing 

in need of relief, and the sums charged in said account were expended for his relief 
and maintenance, and are, in our opinion, reasonable charges. Said has no set- 
tlement in any town in this state, and no relation in this state of sufficient ability 
chargeable with his maintenance. 

, | Overseers of the poor 

, ) for the county of . 

To this there should be an affidavit that the certificate by them signed is in their 
feelief true. See ante, p. 262, s. 4 (b). 

2. Affidavit to be furnished. No county shall be liable 
to any town for the relief, support or funeral of any poor 
person not having a legal settlement in any town in this 
state, unless the overseers of the poor thereof shall, as 
soon as practicable, take and transmit to the county commis- 
sioners the affidavit of such pauper, if capable, otherwise 
of some well informed person, as to his age, place of birth, 
all his places of residence and the times thereof, and the 
times and places where he or any of his family have been 
relieved or supported. — id. p. 159, s. 12. 

3. Remedy over by county. The county in which any 
county pauper shall have been relieved within one year, or 
in which he shall have last resided not less than one year, 
shall be liable to the county in which he may afterward be 
relieved, if he has not resided in the latter county above 
three months at the time of the first relief, for all sums of 
money paid for his relief, support, or funeral, provided a 
copy of the affidavit before mentioned shall be forwarded 
as soon as practicable to the county commissioners of the 
county to be charged. — id. s. 13. 

4. Removal of pauper. Such pauper may be removed 
by the commissioners of the county to the county charge- 
able with his support, and the expense of such removal 
shall be paid by the county so chargeable. — id. s. 14. 

5. Binding and employing. The county commissioners 
may bind out, or authorize the overseers of the poor of any 
town to bind out or employ, any person chargeable or lia- 
ble to be chargeable to the county, in the same manner 
such overseers might do in case of a person chargeable (1) 
to such town ; and the rights and obligations of all parties 
shall be the same as in such case. — id. p. 158, s. 2. 

6. When any town shall cease to be organized, all 
paupers who have a legal settlement in such town, and no 
relations bound by law to support them, shall be maintained 
by the county in which such town is situate, until the same 
shall be reorganized. — id. s. 3. 



COUNTY PAUPERS. 339 

7. If ant person shall bring from any other state and 
leave in any town, or shall so bring with intent to leave, 
any poor and indigent person having no visible means of 
support and no settlement within the state, knowing such 
person to be poor and indigent (1) as aforesaid, he shall be 
fined not exceeding three hundred dollars nor less than fif- 
ty dollars, or be imprisoned not exceeding six months. — id. 
s. 4. 

(1) No offence is committed unless the party intended to leave the person as a pub- 
lic charge.— 5 B,. 401 ; 16 Mass. 393 ; 1 Pick. 465 ; 2 Greenl. 5. 

8. If they have a settlement there. If any person 
shall bring from any other state and leave in any town, or 
shall bring with intent to leave, any poor and indigent per- 
son having no visible means of support, and having a 
settlement in the state from which such poor and indigent 
person may be brought, knowing such person to be poor 
and indigent as aforesaid, he shall be fined not exceeding 
five hundred dollars nor less than one hundred dollars, or 
be imprisoned not exceeding one year, and shall be liable 
to any town or county for all such sums of money as may 
be expended by said town or county for the support and 
maintenance of such poor and indigent person. — id. s. 5. 

(1) The statute does not apply where the pauper has his home and usual place of 
abode in this state.— 18 R. 49. 

9. Master of vessel to give bond. No master of any 
vessel having passengers on board who have no settlement 
in this state shall suffer such passengers to land until he 
gives bond to the state in a sum equal to two hundred dol- 
lars for every such passenger, with sufficient sureties to the 
satisfaction of the selectmen of the town in which such 
passengers are landed, conditioned to indemnify and save 
harmless such town, and every town and county in the 
state, from all expenses which for three years thereafter 
may arise from such passengers, whose names shall be in- 
serted in said bond. — id. s. 6. 

(a) The form of the bond may be as follows : 

Know all men by these presents, that we , as principal, and , as 

sureties, are indebted to the state of New Hampshire, in the sum of dollars, to the 

payment whereof we bind ourselves and our heirs. 

Sealed with our seals and dated this — day of , 18—. 

The condition of this obligation is, that if the said obligors shall indemnify and save 

harmless the town of , in the county of , and every town and county in the 

state, from all expenses which, for three years from the date hereof, may arise from 



340 COUNTY PAUPERS. 

any of the passengers on board and by the ship , of which said is master, 

who have no settlement in this state, and whose names are as follows [insert] ; — 
then this obligation is to be void, otherwise to remain in full force. 
Signed, sealed and delivered in the presence of 

, ) [Seal.] 

, [Seal.] 

. ) [Seal, j 

Approved this — day of , 18 — . 

) Selectmen of 

10. Penalty for neglect. If any master suffer any such 
passenger to land before such bond is given, unless the 
same is dispensed with by such selectmen on application 
therefor, he shall be fined not exceeding two hundred dol- 
lars for each passenger so landed, or imprisoned not exceed- 
ing one year. — id. s. 7. 

11. Said bond shall be filed by the selectmen who ap- 
prove the same in the office of the clerk of the supreme 
court, and may, by leave of the court, be prosecuted for the 
benefit and at the expense of the party applying. — id. s. 8. 

12. From another county. If any person shall bring 
and leave, or bring with intent to leave, any poor and indi- 
gent person, having no visible means of support, into any 
county, from any other county in which such poor person 
has resided or been supported, such person not having a le- 
gal settlement in any town, nor any relation chargeable for 
his support within the county into which such poor person 
is brought, knowing him to be thus poor and indigent, he 
shall be fined not exceeding two hundred dollars nor less 
than thirty dollars, or be imprisoned not exceeding six 
months.— id. s. 9. See ss. 5, 7, 8, ante ; 45 R. 139, 181 ; 
Digest, p. 518, ss. 138-140. 

13. Order for removal. Every such poor and indigent 
person may be removed from said county, by order of the 
supreme court, into the county . from which he was so 
brought as aforesaid. — id. p. 159, s. 10. 

(a) The form of the petition to the court may be : 
H ss. To the Supreme Judicial Court: 

The county of M complains against the county of S, that 

■ , a poor and indigent person having no visible means 

of support, and no legal settlement in any town in this 
state, and no relation chargeable with his support within 

the county of M, was on the — day of last brought 

into and left in the town of in the county of M, 

from the town of in the county of M, where he had 



COUNTY PAUPERS. 341 

until then resided and been supported, by A B, C D, [or, 
" by some person or persons to the said complainant un- 
known "] the said persons so bringing him in and leaving 
him well knowing him to be poor and indigent, and wrong- 
fully intending to cast the burden of his support upon said 
county of M. 

Wherefore the said county prays for an order for the re- 
moval of the said into the county of S, from which 

he was so brought. 

County of M, by . 

See 45 R. 139, 181 ; Digest, p. 518, ss. 138-140. 

14. Out of the state. Any justice of the supreme 
court, any justice of a police court, or any justice of the 
peace, upon complaint of the overseers of the poor of any 
place, or of either of the county commissioners of any 
county, in term time or vacation, may, by warrant directed 
to a constable or other person therein designated, cause 
any pauper not born nor having a settlement in this state, 
who may conveniently be removed, to be conveyed, at the 
expense of the county within which such pauper may be, to 
any other state, or, if not a citizen of the United States, to 
any place beyond sea where he (1) belongs. — id. s. 1. 

(1) This does not apply to a person whose home and usual place of abode is in this 
state, whether born or having a settlement here or not*; for he " belongs " here. See 
ante, s. 8(1); 1 Gray. 516. 

(a) The application may be : 

To , a Justice of the Peace for the county of . 

The undersigned, overseers of the poor for the town of , in said county, com- 
plain that , a citizen and inhabitant of the [town of , in the] state of Ver- 
mont, not born nor having any settlement in this state, is now a pauper and supported 

by said town of , but can be conveniently removed to the said State of Vermont, 

where he belongs, and they therefore pray that you, by a warrant in due form, will 
cause him to be conveyed, at the expense of said county, to the said State of Vermont. 

) Overseers of the poor of 

Certificate of oath, as ante, p. 262, s. 4 (b). 

Notice should be given to the pauper a reasonable time before the hearing. See ante, 
p. 93, s. 10. 

(b) The warrant may be : 

THE STATE OF NEW HAMPSHIRE. 

[ L . s.] C ss. To , <i Constable of the town of , in said county. 

Whereas, on the — day of last, an application was made to me, a justice of 

the peace for said county, by the overseers of the poor of the town of , in said 

county, for the removal' of , a pauper not born nor having a settlement in this 

state, from the said town of to the state of Vermont, where said belongs 

[or "to the town of , in the state of Vermont," etc.], and alleging that said pauper may 

be conveniently removed to the said state of Vermont, and whereas it appears to me, 
the said justice', after due notice to said pauper, and a hearing upon said application, 
that the allegations therein contained are true, you are commanded to remove the 

said , from the said town of , to the state of Vermont, where he belongs 

[or, if the town is known, " to the the town of , in the state of Vermont, where he 

belongs "]. 

Hereof fail not. 

Given under my hand and seal this — : day of 18. 

, Justice of the Peace. 



342 



FURNISHING RELIEF FOR PAUPERS. 



CHAPTER LIX 



FURNISHING RELIEF FOR PAUPERS. 



Admissions by furnishing relief, s. 1 (f). 

Application for relief, s. 6. 

Burial of pauper, s. 8. 

Husband and wife, ss. 1 (c), 2 (b), 6. 

Jury, province of, s. 1 (e). 

Neglect to furnish relief, remedy 

for, s. 5. 
Parent and child, ss. 2 (1), s. 6. 
Pauper, who is, s. 1 (a), (b),Jc), (d). 
Prisoner in jail, s. 1 (b). 



Relief, by ivhom furnished, s. 2. 

By one selectman, s. 3. 

By third persons, s. 4. 
Relief, mode of, s. 7. 
Relief, to whom furnished, s. 1. 

To children, s. 2(1). 

To persons in jail, s. 11 (b). 

To sick persons, s. 1 (c). 

To wife, ss. 2 (1), 6. 
Selectmen, authority of, ss. 1 (f). 3. 



1. To what persons. When any person in any town 
shall be poor and unable to support himself, he shall be re- 
lieved and maintained by the overseers of the poor of such 
town, whether he has a settlement in such town or other- 
wise. — Gen. Sts. p. 156, c. 74, s. 1. 

(a) A pauper is one who cannot relieve his immediate wants without disposing of 
property which is essential in order to enable him to live, and which, if parted with, 
must be immediately replaced.— 8 R. 305, 306 ; 43 R. 316. 

A person may be a pauper though possessed of property, provided it is not available. 
49 Maine, 385. 

What may have been the cause of his distress and want is immaterial. — 11 Maine, 
484. 

(b) A prisoner in gaol on execution may be a pauper, and the selectmen of the town 
where the jail is situated are bound to relieve him, and recover of the town whei-e he 
has a settlement.— 9 R. 107; Digest, p. 512, s. 1; 49 Maine, 385; 12 Mass. 262; 4 Allen, 
574. 

This statement does not apply to prison charges for a person committed on criminal 
process, since the county is liable to the jailer by Gen. Sts. c. 267, s. 4; nor for such 
charges for a person committed on civil process except in actions of trespass, actions on 
the case for torts, and prosecutions for bastardy, since by Gen. Sts. c. 221, s. 12, the 
creditor in other cases must give bond to the jailer to pay the prison charges. 

(c) If a poor person is sick and requires the assistance of his wife, both may be enti- 
tled to relief, although she could otherwise provide for herself.— 11 R. 134; Digest, p. 
512, s. 3. 

(d) Supplies furnished for the support of those who nurse a sick pauper may be prop- 
erly regarded as supplies for the support of the pauper.— 34 R. 266. See s. 2, post. 

(e) It is for the jury, under instructions, to determine whether a person, to whom re- 
lief has been furnished, was a pauper, and whether the relief was furnished in good 
faith.— 43 R. 316; 8 R. 376; Digest, p. 512, s. 6. 

(f) Selectmen cannot bind their town to maintain a pauper with whose support th3 
town is not legally chargeable.— 14 R. 382 ; Digest, p. 512, s. 9 ; 47 Maine R. 130 ; 10 do. 
185. 

But their furnishing relief or paying for supplies furnished by another town is evi- 
dence against the town in a subsequent suit depending upon the same settlement. — 
47 R. 215; 18 R. 20; 40 R. 478; Digest, p. 331, s. 120; p. 341, s. 309; 29 Maine, 313, 363. 
See also 9 Allen, 207; 7 do. 284. 

2. By whom. Whatever may be the obligations of 
others (1), if a person is found poor and in need of relief, 
it must be furnished to him by the overseers of the poor of 
the town ivhere he may happen to be, and as long as such re- 
lief may be necessary. — s. 1 ante; 43 R. 318 ; 30 R. 122 ; 
1 R. 577 ; Digest, p. 512, s. 7 ; 53 Maine, 29, 32 ; 49 do. 
386 : 26 do. 167 ; 13 do. 34, 328 ; 32 do. 60, 63. 



FURNISHING RELIEF FOR PAUPERS. 343 

(t) It has been held that a minor child is not to be deemed a pauper, so as to subject 
the town where he has his settlement to an action for his support, so long as the 
father has sufficient ability to maintain it.— 39 R. 247; Digest, p. 512, s. 4. See 17 Vt. 
79. Contra, 32 Maine, 60, 63. But whether this is correct or not, it is conceived to be the 
clear duty of the overseers of the poor to furnish relief to such a child if destitute; and 
the same rule must apply to a wife although her husband has means. — 7 R. 507. 

3. One overseer or selectman has in general no authority 
to bind the town to pay for supplies or assistance of any 
kind.— 44 R. 28 ; Digest, p. 517, s. 123 ante. See 44 R. 43, 
45 ; Digest, p. 512, s. 12 ; 48 Maine, 562 ; 3 R. 290 ; 7 R. 
305 ; 9 R. 57 ; 33 R. 577 ; 10 R. 38 ; Digest, p. 512, s. 10 ; 
7 Allen, 284 ; 13 Met. 197. 

4. Third persons have in this state (1) no authority to 
furnish relief unless authorized by a major part of the over- 
seers of the poor.— 10 R. 352 ; 44 R. 28 ; Digest, p. 517, 
ss. 123, 124. 

(1) It is otherwise in Maine by statute. — 48 Maine, 560. 

5. An indictment will lie against overseers for a willful 
neglect of duty, although a mandamus is perhaps a concur- 
rent remedy.— 23 R. 355, 359; Digest, p. 227, ss. 119-122. 

6. No application is necessary in order to give the over- 
seers authority to act, although in general there is no oc- 
casion to interfere without one. If a family is manifestly 
in need of immediate assistance, it is the duty of the over- 
seers to afford it even if the head of the family refuses to 
receive it.— 7 R. 577, 53 Maine, 29, 32 ; 26 do. 167 ; 13 
do. 34, 328. 

7. Mode of relief. The overseers may afford relief in 
such manner as they deem best, acting reasonably and in 
good faith. — 49 Maine, 550, 554. 

8. Burial. If any pauper shall die in any town, having 
a settlement in such town, or otherwise, the overseers of the 
poor shall cause such person to be decently buried at the 
expense of the town. — Gen. Sts. p. 156, c. 74, s. 7. 



344 



poor faem: binding out paupers. 



CHAPTER LX 



POOR FARM: BINDING OUT PAUPERS. 



Binding out paupers, ss. 3. 4. 

Form of, s. 7 (a), (b). 
Binding out children of paupers, s. 4. 

Form of, s. 8. 

Requisites of, ss. 5, 6, 8. 
Children of PAUPERS,whether paupers, 

8.4(C). 

May be set to work, s. 4. 
Guardian, authority of, s. 4 (d). 
Idle paupers may be bound out, s. 3. 

May be set to work, ss. 1, 3. 
Insane pauper, labor of, s. 3 (a). 
Labor of paupers, action for, ss. 3 (a)4(c) 
Legacy to pauper, s. 3 (b). 



Master, rights of, s. 4 (b), (d). 

In another state, s. 4 (b). 
Money belonging to pauper, s. 3 (b). 
Overseers of the poor, authority of, 
s. 4 (a), (c). 

Liability of, ss. 3 (a), 4 (c). 

To inquire into usage, etc., s. 5. 
Poor farm, purchase of, s. 1. 

Officers and regulations for, s. 2. 
Property of paupers, s. 3 (a), (b), (c). 
Purchasing of paupers forbidden, s. 3 

(c). 
Schooling, covenant for, ss. 5 (1), 6 (b). 
Work-house, purchase of, ss. 1, 3. 



1. Poor farm. Any town (1) may purchase and hold 
lands, and may purchase or erect buildings, and furnish 
whatever may be necessary for the accommodation, support 
and employment of the poor within said town ; and at any 
legal meeting may raise money for said purposes.- — Gen. 
Sts. p. 156, c. 74, s. 2. 



(1) This has no application to unincorporated places. - 
T5, s. 3. 



R. 93; Gen. Sts. p. 158, c. 



2. Officers and regulations for. The town may appoint 
necessary officers and establish by-laws for the management 
of such property and the government of the poor there sup- 
ported ; but no punishment shall exceed that allowed in the 
house of correction of the town. — id. s. 3. 

3. Idle paupers. The overseers of the poor in any town 
may, by written contract, bind out to labor for a term not 
exceeding one year, or employ in their work-house, every 
person residing in such town who lives idly and pursues no 
lawful business, and who is poor and stands in need of relief, 
or whose family, standing in need of relief, is supported 
by such town, and shall take his wages and appropriate the 
same to the maintenance of such person, his family or 
children. — id. p. 156, s. 4. 

(a) Labor of paupers. Where relief is furnished to one of full age and of sound mind, 
upon his own application, although the value of his labor performed for the town ex- 
ceeds the amount expended for his relief, he cannot recover for the excess.— 34 R. 432 ; 
Digest, p. 512, s. 14. 

If the overseers of the poor retain, in their charge, as a pauper, an insane person not 
needing relief, for the sake of a profit to be made by the town, and let out his services 
for a vear to one who pays the town an agreed sum beyond his support, he may re- 
cover the money of the town.— 34 R. 432; Digest, p. 51, s. 39. 

(bi An overseer of the poor who receives a legacy given to a non compos pauper, and 
applies a portion of it for her support, is not liable if it was laid out in & judicious man- 
ner— 31 Vt. 354. See 49 Maine, 550, 555. 



poor farm: binding out paupers. 345 

(c) Purchases of paupers. No person shall purchase or receive, in exchange or other- 
wise, from any pauper supported in any almshouse or poorhouse, without permission 
of the overseers of the poor, any property whatever ; and any person so offending shall 
he punished under the provisions of this chapter, and shall pay trehle the value of such 
property to said overseers.— Gen. Sts. p. 510, c. 252, s. 13. 

4. Children. Such overseers shall set to work, in the 
work-house or elsewhere, or bind out as apprentices, all 
children residing in their respective towns who are not em- 
ployed in some lawful business, and whose parents are un- 
able or neglect to maintain them, — males until the age of 
twenty-one years (1) and females until the age of eighteen 
years.— Gen. Sts. p. 156, c. 74, s. 5 ; 22 Yt. 75-80. 

These three things, — residence in the town, the not being 
employed in some lawful business, and inability or neglect 
of parents to maintain them, — must concur to warrant the 
binding out of children by overseers of the poor. — 30 R. 
118. 

(1) A hinding out until twenty years instead of twenty-one is invalid, and the father 
may recover for the services. — 16 Pick. 44. 

(a) Overseers of the poor, in binding out paupers as apprentices, act as public officers, 
and not as the agents of their towns; and their authoritv must be strictly construed in 
favor of the apprentice.— 30 R. 118; Digest, p. 518, ss. 132, 133; 19 Pick. 358; 16 do. 44. 
They cannot release or discharge any of the covenants— 30 R. 104; and their admis- 
sions by any recital in the instrument are no evidence against the town.— 9 Allen, 207, 
209. Thev cannot bind the town, by a covenant that the apprentice shall faithfully 
serve.— $ Vt. 256. 

(b) Overseers of the poor of another state have no authority to bind out paupers as 
apprentices in this state.— 5 R. 401 ; 13 Met. 80. 

(c) A minor child does not necessarily become a pauper by reason of the pauperism 
of the parent.— 15 R. 486. 

A minor son of an insane pauper mother, but not himself a pauper, may maintain 
assumpsit against an overseer of the poor who puts him to work upon his farm, for the 
value of his services beyond necessaries furnished him. — id. 

(d) When the binding out is legal, the master will have a right to the services of the 
minor, that cannot be interfered with by a guardian subsequently appointed.— 3 R. 
272; Digest, 43, s. 9.; 

5. Mode op binding out. Such contract shall be in 
writing, shall be made equitably, and as much as may be 
for the interest of the persons bound out, and shall provide 
that they shall be instructed to read, write and cipher (1), 
arid to do such work and business as is suitable to their 
condition. The overseers shall inquire into the usage of 
all persons so bound out, shall see that said contract is ful- 
filled, and that all wrongs or injuries are redressed ; and 
the rights and obligations of such master and apprentice 
shall be the same as in the case of other apprentices. — id. 
s. 6. 

(1) A covenant to give "the privilege of all the town school usually taught in tewn," 
is not a compliance with the statute, and the indenture is void.— 16 Pick. 44; 5 do. 250. 



346 POOR FARM : BINDING OUT PAUPERS. 

6. The contract should be in duplicate, and be signed 
by the overseers and the master ; it should recite the cause 
of binding out ; and the recital in it of facts that warrant 
a binding out will be evidence against the master. — 30 R. 
104 ; 19 Pick. 358. 

If it do not contain the provisions for the benefit of the 
minor, it will be void, and neither party bound by it. — 16 
Pick. 44 ; 5 Pick. 250 ; ante, s. 5 (1). It may contain 
stipulations for his benefit in addition to those required by 
the statute.— 30 R. 104 ; 33 R. 571. 

(a) The form of binding out an adult may be: 

[l. s.] This indenture between the overseers of the poor of the town of , and 

of the town of , witnesseth that said overseers bind out to labor , who re- 
sides in said town, and lives idly and pursues no lawful business, and is poor and 
stands in need of relief [or, instead of the words in italics, " whose family standing in 

need of relief is supported by said town"], to , of the town of , for the term 

of one year, him during said term to faithfully serve and his lawful commands obey. 

The said covenants to pay to said overseers dollars a month in monthly 

payments, on the first day of each month for the month next preceding, as wages of 

the said , to be by them appropriated according to law. 

In witness whereof, we have hereto set our hands and seals, this — day of , 18 — . 

Overseers of the 

Poor of the 
town of— . 



(b) The form of binding out a minor may be : 

[l. s.] This indenture between the overseers of the poor of the town of , and 

of the town of , witnesseth that said overseers bind out , a minor residing in 

said town, not employed in any lawful business, and whose parents are unable or neg- 
lect to maintain him, until he shall be twenty-one years of age, which will be on the 

— day , 18—, if he shall live so long, as an apprentice to learn the trade or business 

of a [here insert the employment], and him, the said , during all said time to 

faithfully serve and his lawful commands obey. 

And said covenants that the said shall be instructed to read, write and 

cipher, and shall do such work and business as is suitable to his condition, and shall 
be well and faithfully taught in said trade or business, and that he will provide for 
him suitable food, clothing, lodging, medicines, nursing, attendance and other neces- 
saries for his comfortable support in sickness and in health. 

In witness whereof, etc., as in (a), ante. 



INSANE PERSONS AND ASYLUM. 



347 



CHAPTEE LXI 



INSANE PERSONS AND ASYLUM. 



Binding out insane persons, s. 9. 
Committing to insane asylum, ss. 1-4, 6. 
Concord city, liability of, b. 7. 
County pauper, s. 4. 
County to pay expenses at asylum, s. 5. 
Dangerous insane, s. 1. 
Discharge from asylum, s. 8. 
Evidence to prove insanity, s. 6 (a). 
Friend of insane may commit, s. 6. 

Wife is friend of husband, s. 8 (a). 
Guardian may commit to asylum, s. 6. 
Husband and wife, s. 6 (a). 
Inquisition, return of, s. 1 (a), s. 6 (a). 
Insane person, confinement of, 

By private persons, s. 1 (a), s. 6 (a). 

By selectmen, s. 1 (a), s. 6 (a). 
Insane paupers may be committed, ss. 

3,4. 
Insanity, evidence of, s. 6 (a). 



Jail, insane persons in, s. 2. 
Labor of insane persons, s. 9. 
Legacy to insane persons, s. 9. 
Meaning of insane person, s. 9. 
Pauper, if insane, may be committed, ss. 

3,4. 
Petition to judge of probate, form of, s. 
1(b). 
To supreme court, s. 4 (a). 
Selectmen, authority over insane, s. 1(a), 
s. 3. 
May commit to asylum, s. 3, s. 6 (a). 
To be notified of application, s. 1. 
Settlement of insane persons, s. 9. 
Supreme court may commit, etc., ss. 2, 

4. 
Trespass, action of, by insane person, s. 
1 (a), s. 6 (a). 



1. If dangerous. If any insane person is in such con- 
dition as to render it dangerous that he should be at large, 
the judge of probate, upon petition by any person, and such 
notice to the selectmen of the town in which such insane 
person is, or to his guardian, or any other person, as he 
may order, — which petition may be filed, notice issued, and 
a hearing had in vacation or otherwise, — may commit such 
insane person to the asylum. — Gen. Sts. p. &5, c 14, s. 
12. 

(a) Selectmen and overseers of the poor have not, ex officio., any right to control and 
restrain the person of a lunatic— 12 R. 526; Digest, p. 611, ss. 124, 125. 

The plaintiff being insane, and it being dangerous to permit him to be at liberty, 
the defendant, one of the selectmen of the town, confined him. He then, with the 
other selectmen, applied to the judge of probate for an inquisition upon the plaintiff. 
A warrant was issued, and the selectmen made an inquisition, and declared their 
opinion to be that the plaintiff was insane, but made no return of the inquisition to the 
judge of probate, and no further proceedings were had, but the defendant still kept him 
in confinement. Held, a trespasser, ab initio. — id. 

No one has a right to confine an insane person for an indefinite period until he shall 
be restored to reason, but only under the sanctions and upon compliance with the for- 
malities of the law. — id. ; Digest, p. 613, ss. 16, 17. 

If a person be so insane that it would be dangerous to suffer him to be at liberty, any 
person may from the necessity of the case, without a warrant, confine him for a reas- 
onable time until proper proceedings can be had for the appointment of a guardian. — 
id. See post, s. 6 (a). 

Inquisition by selectmen, see ante, p. 322, s. 1 (a). 

(b) The form of petition under s. 1, ante, may be as follows: 
To the Judge of Probate of the county of : 

A B, of the town of , in said county, respectfully represents that C D of said 

town is an insane person, and is in such condition as to render it dangerous that he 
should be at large. 

Wherefore the said A B prays that said C D may be committed to the asylum for the 
insane. . 

Dated at said , this — day of , 18—. 

AB. 



348 INSANE PERSONS AND ASYLUM. 

2. IP ANY INSANE PERSON IS CONFINED IN ANY JAIL, the 

supreme court may order him to be committed to the asy- 
lum, if they think it expedient. — id. s. 13. 

3. Any insane pauper supported by any town may be 
committed to the asylum by order of the overseers of the 
poor, and there supported at the expense of such town ; 
and such expense may be recovered by such town of the 
county, town or person chargeable with the support of such 
pauper, in the same manner as if he had been supported in 
and by the town. — id. s. 14. 

4. If county pauper. If the overseers neglect to make 
such order in relation to any insane county pauper, the 
supreme court or any two judges thereof, in vacation, may 
order such pauper to be committed to the asylum, and there 
supported at the expense of the county. — id. s. 15. 

(a) Any one may apply for such an order. The form of petition, if in vacation, may be 
as follows : 

To , and , two of the Justices of the Supreme Judicial Court: 

A B, of the town of , in the county of , respectfully represents that C D 

of said town, is an insane county pauper, and is in such condition that it is necessary 
and proper that he he committed to the asylum for the insane, but the overseers of 
said town have neglected and still neglect to commit him to said asylum. 

Wherefore the said A B prays said justices to order said pauper to be committed to 
said asylum, and there supported at the expense of the county. 

Dated at said , this — day of , 18 — . 

AB. 

(b) If the petition is to the court, the form may be: 

M ss. To the Supreme Judicial Court: 

A B, of , in said county, respectfully represents, etc. 

5. County to pay. Any insane person committed to the 
asylum by any court or any judge of probate shall be sup- 
ported by the county from which he was committed ; and 
any sum so paid may be recovered by the county of any 
county, town or person chargeable with his support. — id. 
s. 16. See s. 10, post. 

6. The parent, guardian or friends of any insane per- 
son may cause him to be committed to the asylum, with 
the consent of the trustees, and there supported on such 
terms as they may agree. — id. s. 17. 

(a) The wife, as the friend of an insane husband, may employ 'the selectmen of a 
town to commit him to tbe asylum, and trespass will not lie against them in such case 
if they act in good faith and use no unnecessary force.— 47 R. 208, 209. 212. 

But in such cases, there having been no inquisition, the fact of insanity must be 
proved at the trial.— id. Evidence to prove insanity, see ante, p. 322, s. 1 (a). 

7. But the city of concord shall not in any case be lia- 
ble for the support or maintenance of any, person commit- 
ted to said asylum, except from said city. — id. 



SUITS FOR SUPPLIES TO PAUPERS. 



349 



8. Discharge from asylum. Any person committed to 
the asylum may be discharged by any three of the trustees, 
or by any justice of the supreme court, whenever the cause 
of commitment ceases (1), or a further residence in the asy- 
lum is in their opinion not necessary ; but any person so 
discharged who was under sentence of imprisonment at 
the time of his commitment, the period of which shall not 
have expired, shall be remanded to prison . — id. s. 18. 

(1) And the town or person chargeable is liable for the expenses, until such dis- 
charge.— 39 R. 213, Digest, p. 516, s. 95 ; see s. 7, ante. 

9. Binding out insane persons, see ante, pp. 320-22, s. 1, 
s. 1 (a), s. 2. 

Labor of insane persons, see ante, p. 314, s. 3 (a). 
Legacy to insane persons, see ante, p. 314, s. 3 (b). 
Meaning of insane person, see ante, p. 320, s. 1 (1). 
Settlement of insane persons, see ante, p. 333, s. 8 (1), 
s. 16 (a). 



CHAPTEE LXII. 



SUITS FOR SUPPLIES TO PAUPERS. 



ACTK» T AT COMMON LAW, SS. 7, 8. 

Action by statute, against relations, 
ss. 1, 3, 4, 5, 6. 
Against town, ss. 1, 3, 4. 
For expenses at asylum, s. 27. 
When to be brought, s. 20. 
Where to be tried, s. 21. 

BURDEN OF PROOF, S. 3. 

To show settlement, s. 10, s. 10 (a). 

When it shifts, s. 10 (b). 
Charity, relief is, s. 26. 
Children not liable at common 

LAW, S. 8. 

Liability by statute, ss. 1, 6. 

Residing in another state, s. 9. 
Damages, rules for, ss. 22, 25. 
Gift or loan, s. 2 (a). 
Limitation of actions, s. 20. 
Note for supplii- s furnished, s. 19. 
Notice of supplies furnished, ss. 11, 
12, 13. 

Misdescription of persons, s. 12 (a). 



Misdescription of sums, etc., s. 13. 

Part recovery, ss. 12, 22. 
Notice, form of, s. 15. 

Waiver of defects in, s. 19. 
Notice, service and return, ss. 16, 17, 27. 

Good for 90 days and 1 year, s. 18. 
Overcharging, effect of, s. 14. 
Part recovery, when allowed, s. 22. 
Payment before notice or suit, s. 
23. 

By town not liable, s. 23. 
Proof, rules for, s. 24. 
Relations, who are such, ss. 4, 5. 

Residing in another state, s. 9. 
Selectmen, admissions by, s. 24. 

May give note for supplies, s. 19. 

May testify to good faith, s. 24. 

May waive defects in notices, s. 19. 
Set-off not admissible, s. 25. 
Sufficient ability, what is, s. 5. 
Venue, change of, s. 21. 
Waiver of notice, s. 19 (a). 



1. Against eelations. The relations of any poor per- 
son, in the line of father or grandfather, mother or grand- 
mother, children or grandchildren, of sufficient ability, 
shall be liable to maintain such person when standing in 
need of relief. If such person has no such relations of 
sufficient ability, the town wherein such person has a legal 
settlement shall be liable for his support. — Gen. Sts. p. 
156, c. 74, s. 8. 



350 SUITS FOR SUPPLIES TO PAUPERS. 

2. Against town. If any person shall expend any sum 
for the support or burial of any poor person having a set- 
tlement in some other town, or having any relations of 
sufficient ability, such sum may be recovered of the town 
or person so chargeable. — id. s. 9. 

(a) If when supplies are furnished the overseers distinctly agree that ;the supplies 
shall not be regarded as pauper supplies, but as a gift or loan, the person receiving 
them will not be a pauper and there will be no claim upon any other town. — 53 Maine, 
29, 32. 

3. The first question, when supplies have been furnished 
to any one, is whether he was a pauper. Upon this point 
see ante, p. 342, s. 1 (a), (b), (c), (d), s. 2 (a). 

4. The next inquiry is whether there are relations of suffi- 
cient ability. The burden of proof here is upon the plain- 
tiff, whether the suit is against relatives or the town of the 
settlement. 

5. Relations, who are. A man is not bound to support 
the illegitimate offspring of his children — 4 R. 86 ; 39 R. 
247 ; 44 Maine, 307 ; nor the children of his wife by a for- 
mer husband. 

6. Sufficient ability. The statute does not compel any 
one to support a poor relative, if to do so he would be ob- 
liged to trench upon his capital. If by proper exertions 
he can support himself and family and the pauper, without 
being poorer at the end of the year than at the beginning, 
he is liable, but not otherwise. The question is to be de- 
cided upon the facts as they exist at the time the support 
is needed. — Digest, p. 518, ss. 125-128. 

7. At common law. The rule stated in the last section 
is not applicable, in a suit at common law by a town, 
against a husband or father for necessaries furnished to a 
wife or unemancipated minor child. In such a case if the 
supplies were properly furnished by reason of the defend- 
ant's neglect, he will be liable unless so poor that he should 
be regarded as a pauper and aid to his wife or child as a 
public charity to him. — Digest, p. 419, ss. 28-30 ; 36 R. 
271 ; 39 R. 247 ; 4 R. 86 ; Digest, p. 504, ss. 29-24 ; or 
see 5 Gray, 28 ; 14 Mass. 227 ; 6 Allen, 585. 

8. The common law imposes no duty upon a son to sup- 
port an indigent parent, and he cannot be charged without 
a request, or in compliance with the terms of the statute. 
—45 R. 558. 



SUITS FOR SUPPLIES TO PAUPERS. 351 

9. An inhabitant of another state 'duly served with 
process here, or whose property is here attached, may be 
charged under our statute for the support of an indigent 
parent, the same as a resident of this state. — 45 R. 558. 

10. The burden of proof is upon the plaintiffs to show 
the settlement, even when it involves the proof of a nega- 
tive. 

(a) Thus if the plaintiffs claim that the pauper ' derived a settlement from the 
mother, they must show that the father had no settlement.— 32 R. 255 ; 4 Pick. 176. 

(b) When the plaintiffs have made out a prima facie case, the burden of prooi may 
shift. Thus if they prove that the pauper had a settlement, at a certain time in the 
defendant town, the defendants must show that he afterwards acquired one elsewhere. 
—13 Met. 192; 34 Vt. 184; Digest, p. 331 (c). 

11. Notice. No action shall be sustained against any 
town or person, unless a notice in writing, signed by the 
overseers of the poor, stating the sums so expended, shall 
first have been given to such town or person. — Gen. Sts. p. 
157, s. 10. 

12. Of the persons relieved. The notice must desig- 
nate the persons relieved by name or otherwise, so that they 
may be readily known. — 2 R. 531 ; 20 R. 505. A notice, 
though insufficient as to some of the persons, may be valid 
as to the others.— 8 R. 143 ; 31 Maine, 124 ; 4 Pick. 358. 
See s. 13, 'post. 

(a) " Joan " for " Joanna " is not a material misdescription.— ?0 R. 505 ; nor " Sarah or 
Sally," instead of " Sally:'— -1 Pick. 470. " The child" of A B is sufficient, if he has but 
one child — 8 Pick. 398 ; and so of " three children " of B, if B has but three children 
— 10 Pick. 22 ; and so if the initial letter of the middle name is given instead of the 
middle name— 20 R. 505 ; or if there is an entire omission of the middle name— 38 R. 
561, 580 ; Digest, p. 473, s. 1 ; but " Labern " for " La Barron " is bad.— 5 Pick. 190 ; and so 
of a notice of supplies to A B " and his four minor children," it appearing that he has 
more than four.— -12 R. 409 ; 4 Pick. 358. See also 5 Green. 440 ; 2 N. H. R. 530. A no- 
tice that the wife has become chargeable, is not bad for not stating that her husband 
has thereby become chargeable. — 31 Maine, 124. 

13. Op sums expended. The notice need not state the 
sums expended for each of several persons constituting one 
family, all of whom are sufficiently described, and are pau- 
pers chargeable to the town notified. — 12 R. 409 ; 8 R. 142. 

(1) It was held in one case, that upon a notice of a certain sum as expended for three 
persons named, one of whom was not sufficiently described, there could be no recovery 
for the other two.— 2 R. 530 ; but see s. 14, j)ost. Where the notice, by mistake, included 
some expenditures made before ninety days next preceding its service, but the means 
of distinguishing what came before were given,— held, not invalid, there being no bad 
faith.— 43 R. 543. 

14. Overcharging in the notice beyond the sums paid 
or agreed to be paid, if intentional, will invalidate the no- 
tice wholly ; but if by mistake, will not prevent a recovery of 
the proper sum.— 34 R. 266 ; 43 R. 543 ; post, s. 22. 

15. The form of a notice of supplies furnished may be : 



352 SUITS FOR SUPPLIES TO PAUPERS. 
To the town (1) of , in the county of 



You are hereby notified that S and J S his wife, and 
H S, (etc.) minor children of said S, on the seventh 
day of October last, were and ever since have been in the 

town of , in the county of , poor and unable 

to support themselves, and standing in need of relief, and 
during that time have been relieved and maintained by the 

overseers of the poor of the said town of . The 

sums expended by said town since the said seventh day of 
October, and including that day (2), are as follows : 
For board of said S and his wife 

and children, aforesaid, $ 

For board of N M while employed 

as nurse for said J S during 

her sickness, $ 

Paid said N M as nurse for said 

J b, $ 

Paid &c. I 

Said S and his said wife and children are chargeable 
to your town, and we request payment of said sums. 

(3) Witness our hands at said , this — day of 

, 18-. 

, ) Overseers (4) of the 

, > Poor for the town 

,) ofD . 

(1) The notice should be reasonably full and specific, and it may aid those giving it 
to inquire whether a like notice to themselves would be satisfactory. 

A notice directed to the " selectmen " ot the town is good— 5 R. 348 ; 36 R. 530; but 
held otherwise of a notice served by copy, directed to the sheriff, and requiring him to 
notify the selectmen and town clerk. — 3 R. 80. , 

(2) " And including that day," or else there can be no recovery for supplies furnished 
on that day.— 41 R. 199 ; ante, p. 5, s. 32. 

(3) If by mistake the notice is not dated, the omission will not be fatal, if the period 
of the supply sufficiently appears.— 14 R. 383 ; 48 Maine, 416, 421. Where a notice not 
dated, stated that supplies were furnished on the 15th day of January,' 1 last past" 
and that the pauper had been supported " since that time," it was held, that the words 
" last past" would be referred to the date of the service of the notice, and that the no- 
tice was sufficient.— 14 R. 383. 

(4) If the selectmen are the overseers (no overseers as such having been chosen), 
they may sign as in the above form, and there will be no variance though the declara- 
tion allege that the notice was signed " by the selectmen and overseers."— 34 R. 266 ; 
15 Pick. 563 ; 8 do. 1'25 ; 3 Green. 197. Under our statute the notice must be signed by 
a majority of the board ; two of the selectmen will be presumed to be a majority till 
the contrary is shown. — 6 R. 302. 

In Maine j one overseer may sign the notice.— 48 Maine, 422 ; 45 do. 169 ; 41 do. 594 ; 
3 do. 197 ; 26 do. 61. In Massachusetts, a notice signed by one "for the board" is suf- 
ficient.— 4 Met. 433 ; 8 Mass. 104 ; but see 6 Mass. 501. 

16. Service of notice. Such notice shall be served upon 
such town by the sheriff or his deputy (1), by leaving an 
attested copy thereof with one at least of the selectmen or 



SUITS FOR SUPPLIES TO PAUPERS. 353 

overseers of the poor, and with the clerk of such town, and 
upon any person by giving him in hand or leaving at his 
abode a like copy. — Gen. Sts. p. 157, c. 74, s. 11. 

(1) It is the sheriff* of the county in which is the town that is notified, who is to 
serve the notice.— 9 K. 369; Digest p. 31, s. 137-141, p. 517, ss. 101, 119. 

17. Return to the clerk. The officer making such ser- 
vice shall, within twenty days thereafter, make a return of 
the original notice, with his doings thereon, to the clerk of 
the supreme court in the county in which the town or per- 
son chargeable may be ; and shall receive the same fees for 
his travel and service as by law are allowed for serving 
writs. — id. s. 12 ; Digest, p. 517, s. 100. 

18. Good for ninety days. Such notice shall be sufficient 
for all sums so expended within ninety days (1) previous 
to such service, and for any sums so expended within one 
year thereafter. — id. s. 13 ; Digest, p. 516, ss. 97-98. See 
ante, s. 13 (1). 

19. Waiver. If the time has not expired within which 
a legal notice may be given, the selectmen may waive ex- 
ceptions to a defective notice, or may dispense with any 
notice whatever.— 3 R. 38 ; 7 R. 298 ; 14 R. 390 ; 22 R. 
565 ; 15 Maine, 182. And they may give the note of the 
town for the amount of the supplies. — 7 R. 298. See ante, 
p. 82 (1). 

(a) A subsequent notice is no waiver of any rights under a former one.— 45 Maine, 405. 
An answer to an insufficient notice has been held a waiver of the defect, if no ob- 
jection is taken on that account.— 4 Met. 433 ; 12 Mass. 307 ; 2 Greenl. 1. 

20. Limitation of action. No such action shall be sus- 
tained unless commenced within three years from the time 
of the service of such notice upon the town or person 
chargeable, nor for any sum that may have been expended 
more than ninety days previous to such notice. — id. s. 14. 

21. Change op venue. When any county in which any 
action for the support of a pauper is pending may eventual- 
ly be liable for the support of such pauper, the court, on 
motion, shall transfer such action to an adjoining county 
for adjudication. — id. s. 15. 

22. Part recovery. The town is not obliged to sue for 
all the persons included in the notice.— ^28 R. 81 ; 20 R. 
505 ; Digest, p. 517, ss. 110, 114. 

If the sums paid or agreed to be paid are excessive, a 
reasonable amount only can be recovered. — 34 R. 277 ; 15 
Mass. 449, ante, s. 14. 
23 



354 SUITS FOR SUPPLIES TO PAUPERS. 

A failure to prove one item, will not affect other items. — 
8 R. 144. See s. 14, ante. 

Nothing can be recovered for the services of the over- 
seers.— 8 R. 145 ; 11 Mass. 327. 

23. Payment before the notice was given is not neces- 
sary, provided the supplies were furnished upon the credit 
of the town.— 9 R. 371 ; 3 R. 290. 

Payment should in general be made before suit, or at 
least before trial. — 47 Maine, 558. 

Payment by the county or by another town under a mis- 
apprehension, will be no defense to an action by the town 
furnishing the supplies, against the town of the settlement. 
—43 R. 542, overruling 14 R. 382, contra. 

24. Proof. Strict proof is in general necessary of all 
facts that are essential to the recovery. As to burden of 
proof, see s. 3, s. 10, ante (a), (b). Record evidence of 
the election of the selectmen • or overseers is not required. 
It may be shown that they were acting selectmen. — 27 
Maine, 489 ; Digest, p. 499, II. 

They may testify that the supplies were furnished in good 
faith, if that is a matter in dispute. — 13 Maine, 321 ; Di- 
gest, p. 641, s. 129. 

Acts of the selectmen in paying for supplies furnished 
are evidence against the town to be weighed by the jury. — 
Ante, p. 82, s. 31 (1). 

25. Set off. The town must allow for whatever may 
have been contributed by the pauper, in labor or money or 
property, for his support. — 43 R. 542. But the defendent 
cannot set off counter claims for the support of other paupers. 
— 28 R. 520 ; 47 Maine, 367. Judgments may be offset by 
order of the court. — Digest, p. 583, II. 

26. Charity. Relief to one that is a pauper is a public 
charity, and he will not be liable to refund, though he may 
become able to do so.— 9 R. 195 ; 34 R. 436 ; 37 Vt. 567 ; 
3 Allen, 515. 

27. Recovery for expenses at the asvlum, see ante, p. 
348, ss. 6, 7. 

A pauper notice in such a case is not necessary. — 39 R. 
213, Digest, p. 516, s. 96. 



MAINTENANCE OF BASTARD CHILDREN. 



355 



CHAPTER LXIII. 



MAINTENANCE OF BASTARD CHILDREN. 



Application by town for leave to pros- 
ecute, s. 7, s. 7 (a). 
Arrest in another county, ss. 13, 14. 

Form of a warrant for, s. 14 (a). 
Attorney, defendant may appear by, s. 

Ka). 
Civil suit, the proceeding is, s. 1 (a). 
Complaint by mother, s. 1. 
Form of complaint, s. 15. 
Form of subsequent proceedings, ss. 

15-20. 
Town may prosecute, when, ss. 7. 21. 
Complaint by town, ss. 8, 9, 21. 
Complaint by town, form of, s. 21. 

If made after complaint abandoned, s. 

21 (b). 
If made after a false complaint, s. 21 

(b). 
If made after birth of child, s. 21 (a). 
Complaint, jury trial upon. s. 4. 
May be tried by court, when, s. 4. 
Where to be entered, s. 1 (a), s. 4. 
Constable, authority of, in another 

town, s. 16 (2). 
Copies to be sent up by justice, s. 4. 
Costs of prosecution, by whom paid, ss. 5. 
9, 10. 
When county should pay cost, s. 11. 
When town should pay cost, s. 10. 
County commissioners may prosecute, 

s. 11. 
Debt, action of, upon final order, s. 6. 
Discharge from jail by court, s. 12. 
Evidence, what is admissible, s. 1 (c). 
Examination and order, form of, s. 18. 

1. Complaint by mother. If any woman is pregnant 
with a child, which, if born alive, may be a bastard, she 
may make complaint in writing under oatlT, to any justice 
of the peace, against any man, charging him with having 
begotten such child ; and said justice may thereupon issue 
his warrant commanding the person so charged to be 
brought before some justice of the peace in and for the 
county in which the offence is alleged to have been com- 
mitted, or in which the person so charged may reside. — 
Gen. Sts. p. 160, c. 76, s. 1. 

For forms, see ss. 15-19, j>ost. 

(a) The object of this process is not in any degree the punishment of an offence, but 
to compel security for the maintenance of the child, and is in substance and effect a 
civil proceeding, though its forms are in some particulars criminal. — 11 R. 156; 15 R. 50. 

It is to be entered in court as a civil suit.— 29 R. 56; Digest, p. 98, s. 4. 

It is not necessarv that the husband of a married woman should join with her in the 
complaint.— 3 Allen. 148; 15 R. 405; Digest, p. 98, s. 6. 

A new endorser will not be ordered upon the complainant's removing from the state, 
fir the complaint is not an original writ within the meaning of the statute. — 12 Gray, 
190 ; 5 R. 172. 



Husband, joinder of, in complaint, s. 1 

(a>. 
Indorsee, not necessary, s. 1 (a). 
Intermarriage of parties, s. 1 (a). 
Jurisdiction, when it exists, s. 1 (b). 
Justice in same town, not to act, s. 16 (2). 
Justice to issue warrant, when, s. 1. 
To order recognizance, etc., s. 2. 
To send up copies, s. 4. 
Justice in another county, ss. 13, 14, s. 

14(a), s. 15(1). 
Jury triad, parties entitled to, s. 4. 
Maintenance of child, order for, s. 5. 
Mittimus if not complied with, s. 5. 
Security for, when ordered, ss. 5, 9. 
Mittimus, when issued and form of, ss. 

5,20. 
Nature of a bastardy process, s. 1 (a),(b), 

(c). 
Officer, authority of, in another county, 

s. 16 (2). 
Officer's return, form of, s. 17. 
Recognizance, when ordered, s. 2. 
Form of recognizance, ss. 3, 18, 19. 
How long it continues, s. 5 (1). 
What it must contain, s. 19 (1). 
Sheriff, authority in another county, s. 

16 (2). 
Towns, prosecutions by, ss. 7, 8, 9. 
Liability for costs, s. 10. 
Security to, when ordered, ss. 5, 9. 
Warrant by justice and form of, ss. 1, 16. 
For carrving to another county, s. 14 
(a). 



356 MAINTENANCE OF BASTARD CHILDREN. 

The defendant may appear by attorney, and a trial be bad in his absence, or judg- 
ment be rendered upon default.— 45 R. 274; Digest, p. 98, s. 7 ; 2 Greenl. 165. 

Defects in the warrant are not open, upon the trial in the court under the general 
issue. — 2 Allen, 402. Nor can it there be objected that he was unlawfully committed 
to jail.— 7 Allen, 477. See also Digest, p. 98, s. 21. 

Where the complaint is by the mother, intermarriage of the parties will abate the 
suit as to her — 36 Vt 735; but the town may prosecute. 

(b; It is immaterial that the child was begotten out of the state if the parties have 
since become inhabitants of the state— 13 Allen, 472; but the court has no jurisdiction 
in such case if the complainant has continued to reside out of the state— 9 Allen, 459; 
nor under our statute if the defendant does not reside in this state unless the child was 
begotten here. Sees. 15(1). 

(tf As it is a civil suit both parties may testify and depositions may be taken and 
used. 

It has been held that the complainant is not bound to answer whether she had an 
illicit connection with another man about the same time — 18 Maine, 372; but see 4 R. 
562; 23 R. 318; Digest, p. 650, s. 215; 4 Allen, 435. 

The defendant cannot give his good character in evidence. — 18 Maine, 372. 

The defendant cannot be permitted to show that the plaintiff was in the habit of 
associating with men whose reputation was bad. — 1 Allen, 435. 

It is held in Mass. that if the complainant is a married woman the evidence must 
show bevond a reasonable doubt that the child could not have been begotten by her 
husband'.— 3 Allen, 148. 

In such case the complainant is not competent to prove non-access by her husband; 
but she may prove the criminal connection. — 15 R. 45; Digest, p. 98, s. 16. 

The child may be exhibited to the jury— 38 R. 108; Digest, p. 98, s. 19; but witnesses 
cannot be called to testifv that in their opinion it resembled the defendant.— 16 Maine, 
38; 4 Allen, 435. 

The defendant's admissions that he is the father of a child by the plaintiff five or six 
years before were held incompetent against him. — 9 Gray, 251. 

The jury may find upon her testimony alone.— 3 Allen, 481. 

2. Order by justice. The justice before whom such 
person shall be brought, if he see fit, may order such person 
to recognize in a reasonable sum, with sufficient sureties to 
the satisfaction of the justice, to appear at the trial term of 
the supreme court next to be holclen within and for the 
county in which the offence is charged to have been com- 
mitted, to answer to such complaint, and abide the order of 
said court thereon, and in default thereof may commit him 
until such ord«r is performed. — id. s. 2. 

For forms, see ss. 3, 18, 19, post. 

3. The recognizance may be entered into verbally, the 
justice repeating according to the following form : 

" You , as principal, and you , as sureties, 

acknowledge yourselves indebted to the State of New 

Hampshire in the sum of dollars, to be levied of your 

goods, chattels, lands and tenements, and for want thereof 
on your bodies, if default be made in the condition following, 

which is, that the said shall appear at the trial term 

of the supreme judicial court, to be holden at , in 

the county of , on the — Tuesday of next, to 

answer to the complaint of , of , in the county 

of , single woman, against said , sworn to 

before , a justice of the peace for the said county of 



MAINTENANCE OF BASTARD CHILDREN. 357 

_ on the — day of instant, and abide the order 

of said court thereon. Are you content ? " To this ques- 
tion the obligors answer yes, or otherwise assent. 

The justice should at the time enter upon his docket un- 
der the entry of the suit, thus : 

" Recognizance ordered in the sum of $ , and order 

complied with ; A B, C D, sureties." Or, if such is the fact: 
" Recognizance ordered in the sum of $ ; order not com- 
plied with ; committed." (See 29 R. 530; Digest, p. 39, s. 
21.) An extended record may subsequently be made, as 
in s. 18, post. 

4. Justice to send a copy, etc. Said justice shall 
make a certified copy of each paper in the case, and deliver 
the same to the complainant, or return the same to court 
on or before the first day of the term (1) aforesaid ; and 
said complaint shall be entered at said term, and tried by 
the court, unless either party requests a jury ; in which 
case it shall be tried by a jury, and the issue shall be 
chargeable or not chargeable. — id. s. 3. 

(lj A neglect to file the copies at the first term will not necessarily defeat the suit; 
the court may give time to supply the omission.— Digest, p. 497, s. 13; 2 Allen, 402. 

5. Final order of court. If any man is found charge- 
able, the court shall order him to pay such sum as they 
deem reasonable, to the mother of the child, or the select- 
men of the town liable by law for the maintenance of the 
child, to be applied for such maintenance, and also to pay 
costs of prosecution ; and may order him or the mother, or 
both, to give security to save such town harmless from all 
charge for the maintenance of the child. — id. s. 4. 

(1) The recognizance before the justice is no security for the performance of such 
order, nor for the appearance of the party beyond the first term. — 27 It. 171 ; Digest, p. 
99, ss. 22-24; 10 Gray, 249. It has been held that his appearance in court maybe 
proved by parol.— lOGray, 249. See Digest, p. 567, ss. 12, 13. 

6. Party committed. Any person who shall neglect or 
refuse to obey any such order may be committed (1) until 
the same is obeyed. — id. 

(1) But this remedy is not exclusive; debt will lie upon the judgment.— 15 It. 274; 
Digest, p. 99, s. 29. 

7. Town may prosecute. If any woman, after having 
made her complaint, shall abandon the same, the town 
liable, upon application to the court or justice in writing, 
made by their selectmen, agent or attorney, shall be ad- 



358 MAINTENANCE OF BASTARD CHILDREN. 

mitted to prosecute said complaint, a record whereof shall 
be made ; and all subsequent proceedings shall be the same 
as if said complaint had been instituted originally by such 
town. — id. s. 6. 

(a) The form of the application may be : 

At a justice court before , Esq., on the — day of , 18—. 

A B complainant, vs. C D defendant. 

The said A B having abandoned her complaint, the town of , in 

which she dwells and has her home (1), being liable by law for the maintenance of the 
child in said complaint mentioned, prays to be admitted to prosecute the same. 

By their Attorney, etc. 

The entry upon the docket may be : 

The said A B having abandoned her complaint, ths town of is ad- 
mitted to prosecute the same. 

(1) See 41 R. 118; Digest, p. 98, s. 9. 

8. Complaint by town. If the mother of a bastard child 
neglects or refuses to make complaint, or having made 
complaint neglects to prosecute the same in court, or shall, 
in the opinion of the selectmen of any town liable, make a 
false complaint, any justice of the peace to whom complaint 
may be made by said selectmen, at any time before the 
expiration of one year from the birth of the child, against 
any man, charging him with having begotten such bastard, 
may issue his warrant, directing such person to be brought 
before some justice of the peace in the county in which the 
offence was committed or in which such offender may 
reside. — id. s. 6. 

For form, see ss. 9, 21, post. 

9. Forms of proceedings, etc. Such complaint shall be 
in the name of the town, and the proceedings thereon shall 
be the same in all respects as if the mother had complained. 
If found chargeable, the father shall be ordered to give 
security to save the town harmless from the maintenance 
of such child, pay all costs of prosecution, and stand com- 
mitted until said order shall be performed. — id. s. 7. 

For ferms, see s. 21, post. 

10. Costs against town. When any town is a party to 
such prosecution, and the party accused shall be found not 
chargeable, he shall recover his costs against the town. — 
id. s. 8. 

11. The county commissioners shall have the same 
power to institute, prosecute and control any such com- 
plaint, where the woman is or may be a county pauper, as 
selectmen of towns have in the case of town paupers ; and 
the county shall be liable for costs when the accused is 
found not chargeable. — id. s. 9. 



MAINTENANCE OF BASTARD CHILDREN. 359 

12. Court may discharge. If any person committed to 
prison by virtue of this chapter is poor and unable to pay . 
such sum, or to procure such security as may be ordered, 
said court, on application for that purpose, may discharge 
such person from imprisonment at such time and upon such 
terms as they think expedient. — id. s. 10. 

13. Arrest out of the county. Whenever a warrant 
shall be issued by any justice, and the person charged 
therein shall, either before or after the issuing thereof, 
escape or go out of the county, the sheriff thereof or his 
deputy, or any constable of the town, to whom such war- 
rant shall be directed, may pursue such person, and appre- 
hend him in any county, and carry him before any justice 
in the county in which he was apprehended for examina- 
tion. — id. s. 11. 

14. Warrant for. If it appear to said justice that said 
warrant was duly issued, and that such person did escape 
or go out from such other county as aforesaid, he shall 
thereupon issue his warrant, directed to such sheriff, dep- 
uty or constable, commanding him to carry such person 
before some justice in the county from which he had so 
escaped or gone out, for trial, that such further proceedings 
may be had thereon as the law requires. — id. s. 12. 

(a) The form of a warrant under ss. 13 and 14 may be : 

[L. S.] THE STATE OF XEW HAMPSHIRE. 

ss. To [here insert the name of the officer making the arrest, describing him 

as in the original warrant]. 

Whereas it ha* been made to appear to me, a justice of the peace for said county 

of , that the warrant hereto annexed was duly issued by the justice therein 

named, and that , the person charged therein after the issuing thereof, escaped 

out of the county of therein mentioned, into the said county of , and in 

said last mentioned county was apprehended by you, the said -, by virtue of the 

warrant aforesaid, and brought before me for examination; we command you, in 

the name of the said state, to carry said before some justice of the peace" in the 

county of aforesaid for trial, that such further proceedings may be had thereon 

as the" law requires. Hereof fail not. 

Given under my hand and seal this — day of , 18—. 

, Justice of the Peace. 

15. The form of a complaint by the mother may be : 
To , a Justice of the Peace in and for the county 

of ;(!)•• 

A B , of , in the county of (2), 

single woman, complains that she is now pregnant with a 
child which, if born alive', may be a bastard, and that said 

child was begotten by , of the town of , in the 

county of , shoemaker, on the — day of last, 



360 MAINTENANCE OF BASTARD CHILDREN. 

at , in the county of ; wherefore she prays 

that the said may be held to answer to this com- 
plaint, and be required to pay such sum as shall be reason- 
able for the maintenance of such child, and give security 
to save the town or county liable by law for the maintenance 
of such child harmless from all charge for the maintenance 
of the same, and pay costs of prosecution. 



C ss. Then the said A B made oath 

that the foregoing complaint by her signed is, in her be- 



lief, true. Before me. 



Justice of the Peace. 



(1) The complaint may be made to any justice of any county in the state. See s. 16 
(2), post, s. 1 (b), ante; 6 Greenl. 460. 

(2) If the county is the same the words said county are sufficient without repeating 
the name, and so in respect to the town. 

16. The form of a warrant following such an application 
may be : 

[L. S.] THE STATE~OF NEW HAMPSHIRE. 

G ss. To the Sheriff of said county, or his Deputy, 

or any Constable of the town of , in said county : 

Pursuant to the foregoing complaint, under oath to me, 

a justice of the peace in and for said county, by , of 

the county of (1), single woman, against , 

of , in the county of , shoemaker, we com- 
mand you, in the name of said state, to apprehend the 

said and bring him before (2) some justice of the 

peace for the said county of , to answer to said com- 
plaint. Hereof fail not. 

Given under my hand and seal (3) this — day of , 

18—. 

, Justice of the Peace. 



(1) See s. 15 (?). 

(2) It would seem from ss. 8, 13, 14, ante, that no constable or sheriff has any au- 
thority to make the arrest out of his precinct, except in the cases and in the manner 
stated in those sections; but when an arrest has been made within his precinct the 
officer may pass through any town or county in order to bring the defendant before the 
justice as required by the warrant. 

If the counties are different, as where the offence is committed in the county of 
M and the offender resides in the county of H , the warrant maybe return- 
able "before some justice ot the peace of the said county of M , or of said county 

of H ." 

The officer should not bring the defendant before a justice residing in the town liable 
for the maintenance; but ths defendant may waive the objection. — 38 R. 108; Digest, 
p. 98, s. 21. 

(3) A seal is usual but not necessary.— 21 R. 425, Digest, p. 600, s. 118; 24 Barb. (N.Y) 
215. 



MAINTENANCE OF BASTARD CHILDREN. 361 

17. The form of the officer's return may be : 

G ss. , 18 — . I have apprehended the with- 
in named and now have him before , a jus- 
tice of the peace for said county. 

, Deputy Sheriff. 

18. The form of an examination and order may be : — 
G ss. Be it remembered that* on the — day of 

18 — , A B , of , in the county 



of (1), single woman, made a complaint in writing, 

under oath, to , a justice of the peace in and for the 

county of , against , of , in said county, 

shoemaker, charging him with having on the — clay of 

, 18 — , at , in the county of , begotten 

a child of which she was and is pregnant, and which, if 

born alive, may be a bastard, and the said -, on this* 

— day of , 18 — , was brought before me, a justice of 

the peace in and for the county aforesaid, by virtue of a 

warrant by issued upon said complaint, and after 

hearing the proofs and allegations of the said parties it 
seemed to me fitting, and I therefore ordered, that the said 

recognize in the sum of dollars, with sufficient 

sureties, to appear at the trial term of the supreme judicial 

court, to be holden at , in the county of , on 

the Tuesday of next, to answer to said com- 
plaint and abide the order of said court thereon ; and said 

having neglected to perform said order, it is* further 

ordered that he be committed to the common jail, in said county 

of , there to remain until said order be performed. 

, Justice of the Peace. 

If sureties were furnished, instead of the words in italics 
insert the following : " and thereupon said , as prin- 
cipal, and , of , in the county of , as 

sureties, acknowledged themselves indebted to the state of 

New Hampshire in the sum of dollars, to be levied 

of their goods, chattels, lands and tenements, and for want 
thereof on their bodies, if default be made in the condition 

following, which is, that the said shall appear at the 

trial term of the supreme judicial court to be holden at 

, in the county of , on the Tuesday of 

next, to answer to the said complaint, and abide the 

order of said court thereon." 

19. When the recognizance is before another justice, 



362 MAINTENANCE OF BASTARD CHILDREN. 

the record of the justice before whom it it is taken may be 
as follows : 

Be it remembered that on this — day of , 18 — , 

? of , in the county of , as principal, 

and , of , in said county, as sureties, ac- 
knowledge themselves indebted to the state of New Hamp- 
shire in the sum of dollars, to be levied of their goods, 

chattels, lands and tenements, and for want thereof on their 
bodies, if default be made in the condition following, which 

is, that the said shall appear at the trial term of the 

supreme judicial court to be holden at , in the county 

of , on the Tuesday of next, to an- 
swer (1) to the complaint of , of , in the 

county of , single woman, against the said , 

sworn to before , Esq., a justice of the peace in and 

for the county of , on the — day of last. 

, Justice of the Peace. 

(1) The record need not recite the previous proceedings if it so refer to the complaint 
intended as to identify it beyond question ; for although it has been held elsewhere that 
the recognizance must show the cause of taking (9 Mass. 421; 13 Met. 181; 5 Cush. 
446); yet by s. 15, c. 241, Gen. Sts. no action on any recognizance shall be defeated for 
any defect in the form of the recognizance. See also 29 K. 530 ; Digest, p. 39, s. 21. 

20. The form of a mittimus may be : 

[L. S.] THE STATE OF NEW HAMPSHIRE. 

G ss. To the Sheriff of said county or his Deputy, 

or either of the Constables of , in said county : 

Whereas on the — day of , 18 — , A B of , 

in the county [here insert as in ante, s. 18, down to the sig- 
nature of the justice ; the word Whereas being substituted in 
the mittimus for the words Be it remembered that, and the 

day of for this day of , and it was further 

ordered, for it is further ordered, at the places indicated by 
the *. This part of the mittimus should be identical with the 
record of the examination, with such changes only as the sense 
or grammar may require] : You are commanded to take and 

convey the said to the common jail, in the county 

of and deliver him to the keeper thereof ; and the 

said keeper is required to receive him into his custody in 
said jail, and him there safely keep until he recognize as 
aforesaid or be discharged by due course of law. 

Hereof fail not. 

Given under my hand and seal this — day of , 

18 — . , Justice of the Peace. 



MAINTENANCE OF BASTARD CHILDREN. 363 

21. Form of a complaint by the town may be : 

To , a Justice of the Peace for the county of : 

The town of , in said county, complains that 



of said town, single woman, is now pregnant with a child, 
which if born alive may be a bastard, and said town is by 
law liable for the maintenance of such child ; said child 

was begotten by , of the town of , in the 

county of , to wit, at , in the county of , on 

the — day of last, but the said refuses to make 

a complaint against him as provided by statute ; wherefore 
the said town prays that said may be held to an- 
swer to this complaint and be required to pay such sum as 
shall be reasonable for the maintenance of such child, and 
give security to save said town harmless from all charge 
for the maintenance of the same, and pay costs of prosecu- 
tion. 

Town of . By 

) Selectmen of 

\ said town. 



B ss. , 18 — . Personally appeared 



# selectmen of the town of , and made oath 

that the foregoing complaint is in their belief true. 
Before me, 

9 Justice of the Peace. 

(a) If the complaint is made after the birth of the child, omit the words in italics in 

the above form, and insert " on the — day of last, at -, in said town, was 

delivered of a child, which is living and is a bastard. 

(b) If the complaint was made and abandoned, omit the wor*ds in the above form, 

" but the said refuses to make acomplaint against him," and insert instead," yet 

although the said . has heretofore made a complaint against the said 

charging him with having begotten said child, yet she has neglected to prosecute the 
same in court." 

If she has made a. false complaint, t]ie same words may be omitted, and instead in- 
sert, " and said ■ — has heretofore made a complaint against one , of , 

charging him with having begotten said child, which complaint, in the opinion of the 
selectmen of said town, is false." 



TITLE VIII. 



REGULATIONS OF POLICE. 



CHAPTER 
CHAPTEE 
CHAPTER 
CHAPTER 
CHAPTER 
CHAPTER 
CHAPTER 
CHAPTER 



LXIV, 

LXV. 

LXVL- 

LXVII. 

LXVIII. 

LXIX. 

LXX, 

LXXI. 



CHAPTER LXXII. 
CHAPTER LXXIII. 



-Fire wards and Firemen. 
-Village Fire Districts. 
-Safe-Keeping- of Gunpowder. 
-Spirit ous Liquors. 
-Shows and Exhibitions. 
-Nuisances Injurious to Health. 
-Small Pox and Pestilential Diseases. 
-Disorderly and Vicious Persons and Con- 
duct. 
-Police Officers and 'Night Watchmen. 
-Sunday and Religious Meetings. 



CHAPTEE LXIV 



FIREWARDS AND FIREMEN. 



Apparatus for extinguishing fires, ss. 
13, 14, 25. 

Repair of, bills for, s. 14. 
Buckets and ladders required, s. 18. 
Buildings may be destroyed, s. 7. 

Appraisal of damage, s. 8. 

Form of appraisal, s. 8 (c). 

Form of petition for, s. 8 (-a). 

Notice of hearing, s. 8 (b). 

One firoward no authority, s. 7 (a). 

Owner, who is not, s. 8 (e). 

Supreme court, appeal to, s. 9. 

Tax, assessment of, ss. 8, 8 (d). 
Buildings to be repaired, s. 21. 

Notice to repair, form of. s. 21 (a). 

Occupant, liability of, s. 22. 

Owner, liability of, ss. 21, 22. 

Penalty for neglect, s. 22. 
Cause of firk inquired into, s. 24. 
Chapter 96, Gen. Sts., where in force, s. 

25. 
Chief fireward, choice of, ss. 2, 2 (a). 

Duties of, ss. 2. 5, 13, 14. 

His compensation, s. 14. 
Clerk of firewards, ss. 2, 2 (a). 
Dangerohs fires to be put out, s. 12. 
Engineers, appointment of, s. 23. 
Firemen, appointment of, s. 15. 

Compensation of, s. 17. 

Duties and officers of, ss. 16, 17. 

Exempt from military duty, etc., s. 16. 

Form of appointment, s. 15 (a), (b). 

List of, to be returned, ss. 17, 17 (a). 

Tenure of office, s. 15 (c). 



Firewards, choice of, s. 1. 

Badge of office, ss. 2, 6. 

Majority or', may organize, s. 2 (a). 

Duties of, at fires, ss. 4, 6, 7, 12. 

Office of, unlawfully assumed, s. 6. 

Penalty for refusing to obey, s. 6. 

Seniority determined, s. 2. 

To control fire-engines, etc., s. 3. 

To control persons at fires, s. 3. 

To destroy buildings, s. 7. 

To extinguish fires, s. 12. 

To require buckets and ladders, £ 
18, 19. 

To require repairs, s. 21. 
Ladders, towns may require, s. 18. 

Firewards may require, s. 19. 

Penalty for neglect, ss. 19, 20. 
List of firemen to be returned, s. 17. 

Form of return, s. 17 (a). 
Petition to court, form of, &. 9 (a). 
Regulations by firewards, s. 10. 

Certificate of clerk, s. 10 (b). 

Certificate of posting, s. 10 (c). 

Form of regulations, s. 10 (a). 

Must be recorded, s. 10 (d). 

Penalty for violating, s. 11. 
Regulations by towns against fires, 

11 (a). 
Repair of buildings, ss. 21, 22. 
Selectmen, to act as firewards, s. 1. 

To appraise damage in, s. 8. 
Statute, in what towns in force, s. 25. 

Existing statutes in force, s. 26. 
Supreme court to assess damages, s. S 



1. Firewards to be chosen or selectmen to act as such. 



FIEEWARDS AND FIREMEN. 865 

See ante, p. 76, s. 2 ; Gen. Sts. p. 97, c. 37, s. 4. See s. 25, 
post. 

2. To elect A chief and clerk. The firewards chosen 
in any town shall constitute a board ; shall elect a chief 
fireward and clerk, whose signatures to any notice, appoint- 
ment or act of the board shall be sufficient ; shall adopt a 
badge of office and determine their respective seniority. — 
Gen. Sts. p. 202, c. 96, s. 1. 

(a) A majority of the board mav organize and elect officers by a major vote of those 
present and voting.— Gen. Sts. p. 40, c. 1. s. 14 ; 23 K. 568, 569 ; 29 R. 213, 224 ; Angel and 
Ames on Corp. civ, s. 6. The election may be by ballot or otherwise. 

The form of the record may be as follows : 

At a meeting of the board of firewards of the town of . at , in said town, on 

the — day of , 18—. 

Present [here insert the names of the firewards present]. 

Elected , chief fireward. and , clerk of said firewards, who being present 

severally took the oath of office by law prescribed. 

Voted, etc. 

A true record. 

... . . , Chief Fireward. 

AtiebT; - , Clerk of said Firewards. 

3. To control .engines, etc. They shall have at all times 
the control of all fire-engines, fire-hooks, hose, and all other 
implements designed or used for the extinguishment of fire 
in such town, and of all persons appointed to serve in any 
engine, hose, or ax company, or other association whose 
duty shall be to aid in extinguishing fires, in all things ap- 
pertaining to their appointment. — id. s. 2. 

4. To repair to place of fire, etc. The firewards shall 
forthwith repair to the place where any fire may break out, 
with their badges of office, and exert themselves, and re- 
quire assistance from all persons present, to extinguish and 
prevent the spreading of such fire, and control and direct 
their labor to remove property endangered, and appoint 
guards to take care of the same, and to suppress all tumults 
and disorders with force if necessary. — id. s. 3. 

5. The chief fireward, or in his absence the senior fire- 
ward present, shall have the general direction of the loca- 
tion and action of all engines and other apparatus, and the 
government and direction of all persons and proceedings 
relating to any fire, and the other firewards shall aid him 
in all things as his assistants. — id. s. 4. 

6. Refusing to obey, penalty for. If any person pres- 
ent at any fire shall refuse or neglect to obey the commands 
of the firewards, or any of them, at any fire, or shall un- 
lawfully assume the office or badge of office of a fireward, 



366 FIREWARDS AND FIREMEN. 

he shall be fined not exceeding fifty dollars nor less than 
five dollars. — id. p. 203, s. 5. 

7. Buildings pulled down. The major part of the fire- 
wards present at any fire may cause any building or thing 
whatever to be pulled down, blown up, or removed, if they 
judge it necessary to stop the progress of the fire ; and any 
fireward may require assistance from any person present 
at such fire for that purpose. — id. s. 6. 

(a) To recover against the town it is not enough that the destruction was hy order 
of one of the firewards present at the fire under a general agreement that some houses 
must be destroyed without determining which. — 11 Cush. 433. But if only one is pres- 
ent he may give the order. — 40 Maine, 389. 

8. Appraisal of damage. The selectmen, on applica- 
tion, shall appraise the damage done to any building or 
thing by order of the firewards as aforesaid, assess a tax 
for the payment therefor, and make compensation to the 
owner, unless it shall appear that the fire began in such 
building, or that the same must have been burned if it had 
not been destroyed or removed. — id. s. 7. 

(a) The form of an ajjplication for an appraisal may he : 
To the Selectmen of the town of : 

The undersigned respectfully represents that on the — day of last, during the 

existence of a destructive fire in said town, in the vicinity of a dwelling-house owned 
by him in said town [describe its location], the firewards of said town, judging it nec- 
essary in order to stop the progress of said fire, caused said dwelling-house to be pulled 
down [" blown up," or " removed from the site which it before occupied "]. Said tire 
did not begin in said dwelling-house nor would the same have been burned if it bad 
not been destroyed [or " removed "] as aforesaid: Wherefore he prays that you will 
appraise the damage done to said dwelling-house and assess a tax for the payment 
tberefor and make compensation to him for the same. 

Dated at said , this — day of , 18—. 

(b) Notice should be given to the applicant and to the firewards— as they may have 
reasons to urge against the application — a reasonable time before the hearing, and evi- 
dence of the notice preserved as in laying out highways. — Ante, p. 93, s. 10. 

(c) The form of appraisal may be as follows : 

Upon the foregoing application, having given notice to the applicant and to the fire- 
wards of said town as aforesaid, we are of opinion that the allegations in said petition 
are true, and appraise the damage done to said building at the sum of dollars. 

Given under our hands this — day of , 18—. 

, \ Selectmen of 



(d) The assessment may be in form as for other taxes, making the necessary changes, 
or, if before the completion of the annual tax, the sum to be raised can be included with 

the rest but with an additional column, which may be headed: "For appraisal to , 

for damages to building destroyed by firewards." 

A separate assessment when made should be: 

"An assessment upon the polls and ratable estate in the town of , for the 

amount appraised by us as damage to , for his dwelling-house destroyed by the 

firewards.'' 

<e) A person in possession under a personal contract to purchase is not to be deemed 
<< the owner " until he has paid the full awiounfc of the purchase money.— 11 Cush. 433. 

9. Petition to court. Upon the refusal of the select- 
men, or their neglect for three months after such an appli- 
cation to appraise such damage and assess such tax, the 



FIREWARDS AND FIREMEN. 367 

party injured may petition the supreme court for redress ; 
and the court, after due notice to the town, shall ascertain 
such damages and render judgment and issue execution 
therefor, and for costs against the town. — id. s. 8. 

(a) The form of such petition may be : 
G ss. To the Supreme Judicial Court : 

A B, of the town of , in said county, respectfully represents that [here state 

facts as in the application to the selectmen]. 

Your petitioner on the — day of , 18—, made an application to the selectmen of 

said town to appraise the damage done to said building by order of the firewards as 
aforesaid, and assess a tax for the payment thereof; but said selectmen have wholly 
neglected and refused to appraise such damage and assess such tax, although more 
than three months have elapsed since said application : Wherefore he prays that said 
court will ascertain such damage and render judgment and issue execution therefor 
and for costs against said town. 

, by his Attorney. 

10. Regulations. The firewards may establish such 
regulations respecting the kindling, guarding, and safe- 
keeping of fires, for the prevention^ and extinguishment of 
fires, and for the removal of shavings and other combusti- 
bles from any building or place, as they shall think expedi- 
ent, which shall be signed by the major part of the fire- 
wards, recorded by the town clerk, and posted in two or 
more public places in the town, thirty days before they 
shall take effect. — id. s. 9. 

(a) The form of such regulations may be : 

REGULATIONS BY FIREWARDS. 

I. No person shall place or keep any ashes in any wooden vessel under days 

from the time such ashes shall have been taken from any stove, fireplace or other 
place of a fire. 

II. No person shall keep any friction matches except in some incombustible vessel 
or place. 

III. No person shall kindle any fire in the open air within rods of any dwelling 

in the village of , except the same shall be constantly under the immediate watch 

and care of some competent person. 

IV. No person, etc., etc. 

V. An j' person who shall violate any of the above regulations, shall for each offence 
forfeit the sum of fifteen dollars. 

Said regulations shall take effect from and after the — day of next. 

Given under our hands, at , this — day of , 18. 

Firewards of the 
town of 



(b) I certify that the above regulations were duly recorded on this — day of , by 

me. 

, Town Clerk. 

(c) There should be a certificate of posting, as in case of a warrant for town meet- 
ing.— Ante, p. 37, s. 14 (d). 

The statute does not provide for posting a copy, and it may be well to make dupli- 
cates and post originals. 

11. Penalties not exceeding twenty dollars for each of- 
fence may be prescribed by the firewards for the breach of 
such regulations. — id. 

(a) By Gen. Sts., c. 24, s. 7, towns have similar authority. See ante, p. 10, s. 8. 



368 FIREWARDS AND FIREMEN. 

12. Dangerous fires. Every fireward shall cause any 
fire deemed by him to be dangerous, in any street or else- 
where, to be extinguished or removed. — id. s. 10. 

13. Duties of chief. The chief fireward shall keep or 
cause to be kept in order all apparatus provided by such 
town for the extinguishment of fires, and cause all cisterns 
and sources of water prepared for the fire department to 
be fully supplied and kept in order ; and shall annually re- 
port to the town the condition of all the apparatus under his 
care belonging to the town, and the amount expended for 
repairs thereon. — id. s. 11. 

14. Compensation of. The chief fireward shall be paid 
for his services such compensation as the selectmen shall 
think reasonable ; and the bills for necessary repairs of the 
apparatus provided for, the extinguishment of fires made 
by his direction, being approved by him, shall be paid by 
the selectmen. — Gen. Sts. p. 204, c. 96, s. 12. 

15. Firemen, appointment of. The firewards shall ap- 
point firemen, not exceeding twenty for each ordinary 
hand engine, fifty for each larger suction engine, fifteen for 
each steam engine, and twenty for each hose and hook-and- 
ladder carriage, whose warrants shall be signed by the 
chief fireward and clerk ; and they shall be exempted from 
serving on juries and from military duty. — id. s. 13. 

(a) The form of vote and the record thereof may be : 

At a meeting of the board of firewards of the town of , at , in said 

town, on the — day of , 18 — , at — o'clock in the noon, 

Voted to appoint [here insert the names] as firemen for Fire-Engine Company No. 
— , in said town. 

A true record. 

Attest : , Clerk. 

(b) And the form of warrant may be : 
To A B, of the toton of : 

You are appointed a fireman for Fire-Engine Company No. — , in said town. 
Witness our hands this — day of , 18 — . 

, ) Chief Fireward. 

, j Clerk of Firewards. 

(c) The former statute provided that appointments of firemen should continue in 
force " until they shall resign, remove from town, or be discharged by the firewards, 
and such discharge recorded by their clerk."— Com. Stat. c. 14, s. 11. 

It is presumed that their tenure of office is the same under the present statute. See 
also ante, p. 88, s. 3, as to vacancies. 

16. Duties of officers. The firemen shall be organized 
in such companies, shall appoint such officers, and shall be 
subject to such duties in relation to the care, preservation, 
and use of the public property intrusted to them, and to 
meeting for drill in the management thereof, as the fire- 
wards shall direct or approve ; and shall by night and day, 



FIREWARDS AND FIREMEN. 869 

under the direction of the firewards, use their best endeav- 
ors to extinguish any fire that may happen in their city or 
town or the vicinity thereof. — id. s. 14. 

Suits by firemen and fire companies, see 27 R. 220 ; 43 
R. 265 ; Digest, p. 375, ss. 5, 6. 

17. List to be returned. The chief officer of each com- 
pany of firemen shall annually, in October, make and 
certify under oath a list of those firemen who have faithfully 
performed all their duties in his company, and return the 
same to the selectmen ; and each person so returned shall 
receive in November one dollar and fifty cents for his ser- 
vices, and such further sum as may be voted by the town. — 
id. s. 15. 

(a) The form of such return may be : 

, Oct. — , 18—. I hereby certify that the following persons, viz. [here insert the 

names], have faithfully performed all their duties as firemen in Fire Engine Company 
No. — , in said town, since their appointment [or " during the past year "J. 

, Foreman. 

Certificate of oath in the usual form. — Ante, p. 93, s. 10 (c). 

18. Buckets and ladders. Every town may by vote or 
oy-law provide that every house or building with fireplaces 
or stoves, in the town, or in a definite part of the town (1), 
shall have thereon a good, secure ladder, reaching from the 
ground to the ridgepole, and shall be provided with one 
leathern bucket, of such form as the firewards may prescribe, 
for every two fireplaces or stoves in such house, under a 
penalty of six dollars for every three months' neglect. — id. 
s. 16. 

(1) If the vote does not include the whole town, it should include such a school or 
highway district, or in some way designate the part of the town to which it is to apply 
by definite boundaries. 

19. Firewards may order ladders. Similar ladders 
shall be kept on all buildings on which the firewards judge 
them to be necessary, in those towns and parts of towns in 
which such ladders are or may be legally required on any 
building, subject to the like penalty for neglect. — id. s. 17. 

20. Penalty, by whom paid. Such penalty shall be paid 
by the owner, if known and resident in the town, otherwise 
by the occupant ; and any tenant who may be compelled to 
pay such penalty may retain the amount thereof and the 
costs from his rent, or recover the same amount of his les- 
sor in an action for money paid to his use. — id. s. 18. 

21. Buildings to be repaired. If any building is deemed 
by the firewards to be dangerous to the property of others, 

24 



370 FIREWARDS AND FIREMEN. 

by reason of decay, want of repairs, or otherwise, they 
may give written notice to the owner to repair or alter the 
same, which shall contain a particular account of the re- 
pairs or alterations required to be made. If the owner 
does not reside in the town, such notice may be given to 
the occupant, and if there is no occupant such notice may 
be posted in at least three public places in such town, or 
published. — id. s. 19. 

The clause authorizing the firewards to repair is omitted, 
and a penalty substituted. 

T (a) The form of notice may be : 
To AB, CD, etc., of : 

You are hereby notified that the building [describe it and its location], in 1 the town 

of t i 8 deemed by the firewards of said town to be dangerous to the property of 

others, by reason of decay and want of repairs, and that you are required by them to 
make the following repairs and alterations in the same : [Here specify the particular 
repairs required, which should not go beyond what is strictly necessary to make the 
building safe against fire.— See 8 R. 328 ; Digest, p. 375, ss. 1-3.] 

Witness our hands this — day of , 18 — . 

, ) Chief Fireward. 

, ) Clerk of said Firewards. 

22. Penalty for neglect. If such repairs or alterations 
are not made within thirty days after such notice given, 
posted, or published, the owner or occupant so notified 
shall be liable to a penalty of ten dollars for each month's 
neglect, and shall be liable to the owner of any building or 
property consumed by fire communicated from such dan- 
gerous building, for all damages, as he would be if he had 
willfully set fire to such dangerous building. — id. s. 20. 

23. Engineers. The selectmen, being authorized by 
vote or by-law of any town, shall appoint a chief engineer 
and assistant engineers, and clerk of the fire department, 
who shall respectively have the powers and perform the du- 
ties of the chief and other firewards and their clerk, and 
as a board shall have the powers and perform the duties of 
the board of firewards. — id. s. 21. 

For forms of appointment, see ante, s. 15 (a), (b). 

24. Cause of fire inquired into. The board of firewards 
or engineers of any town have power to inquire into the 
cause and origin of any fire, and to compel the attendance 
of witnesses to testify before them upon such inquest, and 
for that purpose have the powers vested in justices of the 
peace. — id. s. 22. 

25. This chapter, when in force. This chapter shall be 
in force in any town in which apparatus for the extinguish- 



TILLAGE FIRE DISTRICTS. 



371 



ment of fires shall be provided at the public expense, and 
firewards or fire engineers shall be duly elected or appoint- 
ed.— id. s. 23. 

26. But the statutes now in force (1) in any town, re- 
lating to the extinguishment of fires, shall remain in force, 
subject to be repealed or superseded by vote of the town.— 
id. 

(1) Such statutes are in force only in those towns in which they had been adopted in 
whole or in part, by a vote of the town upon an article in the warrant for that purpose, 
before the General Statutes took effect.— R. S. c. Ill, s. 24 ; C. S.c. 114, s. 28, c. 115, s. 
9, c. 117, s. 3. 



CHAPTER LXV. 



VILLAGE FIRE DISTRICTS. 



Annual meeting of district, s. 7. 
Boundaries of district changed, s. 8. 
Choice of officers of district, s. 4. 
Clerk of district, choice of and duties, ss. 

3, 4, 5. 
Engineers, choice of and duties, s. 4. 
Existing districts continued, s. 9. 
Fire apparatus may be purchased, s. 6. 
Firemen, appointment and duties, s. 5. 
Fikewards, choice of and duties, ss. 4, 6, 

7. 



Moderator, choice of and duties, ss. 3, 4. 
Money, for what purposes raised, s. 6. 
Selectmen may form districts, s. 1. 

And call meeting, s. 2. 

Forms of proceedings, s. 1 (a), (b). 

May change boundaries, s. 8. 

To assess tax voted by district, s. 6. 
Special meeting, s. 7. 
Tax, how raised and for what, s. 6. 
Vote to form district, s. 2. 

To raise money, s. 6. 



1. Selectmen may form district. Upon petition of ten 
or more legal voters, inhabitants of any village situate in 
one or more towns, the selectmen of such town or village 
shall fix by suitable boundaries a village fire district (1), 
including such village and such parts of the town or towns 
adjacent as may seem to them convenient, and make a rec- 
ord thereof. — Gen. Sts. p. 205, c. 97, s. 1. 

(1) It must include the whole village.— 26 R. 307. 
(a) The form of petition to the selectmen may be : 
To the Selectmen of the town of- 



The undersigned, legal voters of the village of- 



-, in said town, request you to 



fix by suitable boundaries a village fire district, including such village and such parts 
of said town as may seem to you convenient, and make a record thereof. 

Dated at said , this — day of , 18—. 

AB, 
C D, etc. 
(b) The form of proceeding by the selectmen may be : 

Pursuant to the foregoing application of ten or more legal voters of the village of 

, in the town of , we hereby fix by suitable boundaries a village fire district, 

including said village, to be known as Village Fire District, and to be bounded as 

follows: [Here give the boundaries as in the formation of highway districts. — See 
ante. p. 242, s.8 (a).] 

Witness our hands, this — day of , 18 — . 

Selectmen 
of 



This should be recorded by the town clerk. See ante, p. 85, a. 42 (c). 



372 VILLAGE FIRE DISTRICTS. 

2. And call meeting of voters. Said selectmen shall 
notify a meeting of the legal voters residing in said district 
in the same manner in which town meetings are required 
by law to be called (1), the notice for such meetings being 
posted at two public places (2) in said district. — id. s. 2. 

(1) See ante, p. 35, s. 7. 

(2) See ante, p. 36, s. 10 (c). 

3. Yote to establish district. At such meeting (1) 
the legal voters may by vote establish such district, and 
shall thereupon be invested with the powers specified in 
this chapter, and be subject to the laws relating to fire- 
wards and the extinguishment of fires. — id. s. 5. 

(1) At such meeting, the first or senior selectman present may preside until a mod- 
erator is chosen, and the next business should he the choice of a clerk. Both should 
be chosen by ballot and should take the oath of ottice. See ante, p. 77, s. 7. 

4. Choice of officers, etc. The voters at said meet- 
ing and at each annual meeting shall elect by ballot a mod- 
erator and clerk, and so many firewards or engineers as 
they shall think necessary, who shall exercise in relation to 
the district meetings the like powers to those of moderator, 
clerk and selectmen of towns. — id. s. 3. 

5. Their duties. The firewards and clerk shall have in 
said district the same powers and perform the same duties 
as the like officers in towns ; and the firemen by them ap- 
pointed shall have the same rights and immunities and be 
subject to the same duties as firemen in towns. — id. 

6. Vote to raise money. Such district may vote to 
raise money to purchase one or more fire-engines, hose, 
hooks, ladders, engine-houses, and all apparatus usual or 
necessary for the extinguishment of fire, and for other 
necessary charges and expenses of said district, which shall 
be certified by the clerk to the selectmen, and assessed, col- 
lected and paid over to said firewards in the same manner 
as school-district taxes are assessed and collected (1). 
—id. s. 4. 

(1) Ante, p. 294, s. 1 (1). 

7. Annual meeting. A meeting of said district shall 
be annually held at such time as the district may deter- 
mine, at which said firewards shall submit an account of 
their receipts and disbursements, for allowance, and make 
report of the condition of the property of the district in 



SAFE-KEEPING OP GUNPOWDER. 



373 



their care ; and special meetings may be called when there 
shall be occasion. — Gen. Sts. p. 206, c. 97, s. 5. 

8. Boundaries changed. The selectmen of the towns 
in which village fire districts or precincts have been estab- 
lished, upon petition, after notice to parties interested and 
a hearing (1), may change the boundaries thereof, their 
decision being recorded in the books of the district. — id. s. 6. 

(1) See ante, p. 91. 

9. Existing districts. Village precincts established un- 
der the laws heretofore in force shall have the rights con- 
ferred by this chapter, and shall be governed by its pro- 
visions. — id. s. 7. 



CHAPTER LXVI. 



SAFE-KEEPING OF GUNPOWDER. 



Canisters, when required, s. 4. 
Carriage with powder, ss. 8, 9, 11. 
Compact part of town, powder in, ss. 

3, 6, 8, 9. 
Debt, action of, for penalty, s. 14. 
Firewards may regulate keeping, etc., 

s. 1. 
May search and seize, ss. 2, 11. 
May sue for penalties, s. 14. 
Forfeiture of gunpowder, ss. 2, 11. 
Leathern bags, when required, ss. 4, 6. 
Master of vessel, duties of, ss. 1, 12. 

Penalties for neglect, ss. 2, 3, 11, 13. 
Peddling gunpowder, ss, 10, 11. 
Penalties, how recovered, s. 14. 
Police officers, may search and seize, 
ss. 2, 11. 

May sue for penalties, s. 14. 



Public magazine, deposit in, ss. 12, 13. 
Quantity not to exceed 25 lbs., when, ss. 
2, 3, 8. 

Not to exceed 100 lbs., when, s. 6. 

Penalties for violations, ss. 3, 7, 9. 
Regulations for sale, keeping, etc., a. 1. 

Form of regulations, s. 1, (a). 
Retail, regulations for, s. 4. 

Penalties for violation, s. 5. 
Sales in night time forbidden, s. 10. 
Search for gunpowder, s. 2. 
Seizure of gunpowder, ss. 2, 11. 
Selectmen may regulate, etc., s. 1. 

May search and seize, ss. 2, 11. 

May sue for penalties, s. 14. 
Transportation, rules for, ss. 1, 6. 

Penalties for violation, ss. 3, 7. 
Vessel with gunpowder, ss. 1, 2, 3, 11, 12. 



1. Regulations for. The board of firewards, if any, or 
the selectmen of any town, may establish rules and regu- 
lations from time to time relative to the times and places 
at which gunpowder may be brought to or carried from 
such town, by land or water, and the time when and the 
manner in which the same may be transported through the 
same. — Gen. Sts. p. 206, c. 98, s. 1. 

(a) The forms of making, posting and recording may be similar to those respecting 
fires.— Ante, p. 365, s. 2 (a). 

2. Search for gunpowder. Any two firewards, police 
officers or selectmen may search any building in the com- 
pact part of any town, and any vessel lying in any port, in 
which they have cause to suspect that gunpowder in a 



374 SAFE-KEEPING OF GUNPOWDER. 

greater quantity than twenty-five pounds is kept or stored ; 
and in case a greater quantity shall be found, shall seize the 
same as forfeited. — id. s. 2. 

3. Penalty for keeping. Any person who shall keep or 
knowingly suffer any quantity of gunpowder greater than 
twenty-five pounds to be kept or stored in any such building 
or vessel, or aid or assist in keeping or storing the same, or 
shall know that the same is so stored or kept, and shall not 
forthwitjfi inform one of the firewards, police officers or se- 
lectmen thereof, shall forfeit a sum not more than five 
dollars nor less than one dollar, for every day the same 
shall be so stored or kept. — id. s. 3. 

4. Retail of gunpowder, rules for. Gunpowder kept 
for retail, in quantities less than twenty-five pounds, shall 
at all times be kept in a canister of tin or other metal, se- 
curely covered from fire, or if the same is kept in a cask or 
wooden combustible vessel, the said cask or vessel shall be 
enveloped in a close leathern bag. — id. s. 4. 

5. Penalty for violating. If any person shall keep 
any gunpowder for retail in any other manner, he shall for- 
feit a sum not more than five dollars nor less than one 
dollar for every dav the same shall be so kept. — Gen. Sts. 
pp. 206, 207, c; 98, s. 4. 

6. Transportation, rules for. No gunpowder shall be 
transported through the compact part of any town or vil- 
lage in greater quantities than one hundred pounds, nor 
unless the casks containing the same are enveloped in close 
leathern bags, unless it shall be conveyed in a closely cov- 
ered carriage. — id. s. 5. 

7. Penalty for violating. If any person shall transport 
any greater quantity of gunpowder, or in any other manner, 
he shall forfeit a sum not exceeding fifty dollars nor less 
than fifteen dollars. — id. 

8. Carriage with powder. No carriage upon which 
there shall be a greater quantity than twenty-five pounds of 
gunpowder shall be suffered to stand in any building, or 
near any dwelling-house, store, or other building, in the 
compact part of any town. — id. s. 6. 

9. Penalty. Any person who shall stop, place or leave 
any such carriage as aforesaid shall forfeit a sum not exceed- 
ing fifty dollars nor less than fifteen dollars. — id. 

10. Peddling. If any person shall carry from town to 



SAFE-KEEPING OP GUNPOWDER. 375 

town or from place to place any gunpowder, for the purpose 
of peddling or selling it by retail in quantities less than 
twenty-five pounds, or shall sell or offer to sell by retail any 
gunpowder in any highway or street, or on any wharf, pa- 
rade, or common, or if any person shall sell or deal out any 
gunpowder in the night time, between sunset and sunrise, 
he shall forfeit for each offence a sum not more than five 
dollars nor less than one dollar. — id. s. 7. 

11. Seizure of gunpowder. Any gunpowder kept or 
stored in any building as aforesaid, or kept for retail, or 
transported contrary to the provisions of this chapter, or 
found on any carriage left standing contrary to the forego- 
ing provisions, or carried for the purpose of peddling or 
retail, or offered for sale contrary to the foregoing provis- 
ions, shall be forfeited ; and any fireward, police officer or 
selectmen may seize the same as forfeited. — id. s. 8. 

12. Master to deposit, etc. The master of any mer- 
chant ship or vessel, bringing into any port in this state 
gunpowder in quantity greater than twenty-five pounds, 
shall deposit in the public magazine, if any is there provid- 
ed, all gunpowder so brought by him, within forty-eight 
hours. — id. s. 9. 

13. Penalty for neglect. If he shall neglect so to de- 
posit the same he shall forfeit the sum of one hundred and 
fifty dollars. — id. 

14. Penalties, how recovered, etc. All penalties and 
forfeitures of money incurred by any violation of this chap- 
ter shall be sued for and recovered by action of debt, to be 
brought by the firewards, police officers, or selectmen in 
the name of the town, and shall be expended in the pur- 
chase of such articles as are proper to be used in the ex- 
tinguishment of fires. — id. 



376 



SPIRITOUS LIQUOR. 



CHAPTER LXVII 



SPIRITOUS LIQUOR. 



Account of sales by agent, s. 11. 
Action for price of liquors, s. 12 (b), (c), s. 
16 (a). 

For selling to drunkard, ss. 27, 28. 
Adulteration of liquor, s. 4. 
Appointment of state agent, s. 12. 

Notice of appointment, s. 3. 
Appointment of town agent, ss. 6, 7. 

Certificate of, to be recorded, s. 14. 

Form of appointment, s. 12. 

His compensation, s. 10. 
Bond by state agent, s. 2. 

By town agent, s. 12 (d). 
Common seller punished, s. 17. 
Complainant, who may b ?.s. 26. 

Entitled to half the fine, s. 26. 
Complaint, requisites of, s. 21, s. 29 (a). 

May be amended, s. 22. 
Constitutional law, s. 16 (1), s. 16(b), s. 

23 (b), s. 29 (a). 
Delivery, prima facie a sale, $. 23. 
Domestic wine or cider, sale of, s. 30. 
Drunkard, sale to, forbidden, ss. 28, 29. 
Drunkennkss in public places, ss. 31, 32. 

Disclosure of seller's name, s. 32. 
Former conviction how charged, s. 21. 
Indictment, requisites of, ss 21, 22, 23. 
Innkeeper not to be agent, s. 7. 
Justice or police court, ss. 19, 20. 
Limitation of prosecutions, s. 33. 
Original packages, sales in, s. 30. 
Paupers, giving spirit to, s. 34. 
Penalties for selling, ss. 16, 27, 28. 

Against common seller, s. 17. 

Against town agent, ss. 15, 27, 28. 

For false statement, s. 9. 
Police court, proceedings in, ss. 19, 20. 
Profit, selectmen to fix, s. 13. 
Prohibitory laws constitutionals. 16 (b). 
Purchaser, false statements by, s. 9. 
Purchases of state agent, s. 4. 
Purchases upon credit, s. 12 (b), (c). 
Of state agent, s. 12 (b). 
Of town agent, s. 12 (c). 
Recognizance, justice to order, s. 20. 
Regulations for town agent, s. 11. 

Form of regulations, s. 12. 

May forbid sales upon credit, s. 12 (b), 



Must not be too stringent, s. 12 (a). 

To be recorded, ss. 11, 12, s. 12 (b). 
Removal of town agent, form of, ss. 11, 12. 
Replevin will not lie, when, s. 29 (a). 
Sale by agent to agent, s. 30. 
Sale to drunkard, Xvho may forbid, s. 27. 
Sales, for what purposes legal, ss. 8, 30. 

For what purposes illegal, ss. 15, 16, 17, 
27,28. 

Must be complete or no penalty, s. 16 
(c). 

Presumed illegal when, s. 16 (a). 

Regulations for sales, ss. 11, 12. 
Sales upon credit, s. 12 (b), (c). 
Seizure of liquors, by whom made, s. 29. 
Selectmen to appoint agent, s. 6. 

To make regulations for sale, ss. 11, 12. 
Selectmen to prosecute when, s. 25. 

Others may prosecute, s. 25. 
Spendthrifts, spirit for forbidden, s. 34. 
Spiritous liquors are property, s. 16 (a). 
State not liable for towns, s. 5. 
State agent, appointment of, etc., ss. 1, 

2, 3, 5. 
Town agent, appointment of, ss. 6, 7. 

Annual report by, of sales, s. 13. 

Books and papers to be kept by, s. 13. 

Compensation of, s. 10. 

False statements to, s. 9. 

Form of appointment and removal,s.l2. 

For what purposes he may sell, s. 8. 

Notice to, not to sell to drunkard, ss. 
27, 28. 

Penalties for illegal sales, ss. 15, 28. 

Sales by, and to, upon credit, s. 12. (b), 
(c). 

Suits against for illegal sales, ss. 27, 28. 
Town clerk to record appointment, s. 14. 
Towns may vote not to appoint, s. 6. 

When liable for purchases, s. 12 (b). 
Trespass, action of, for liquors, s. 16 (a). 
Waiver of right of appeal, s. 19. 
Wife may forbid sales, etc., ss. 27, 28. 

Liable for selling when, s. 16 (c). 

Suit by, in her own name, s. 28. 
Witness, when not excused from answer- 
ing, s. 24. 



1. Governor to appoint. The governor shall from time 
to time appoint one or more suitable persons to furnish the 
agents appointed in towns for the sale of spiritous liquor 
with pure, unadulterated spiritous liquors, on such terms 
and under such regulations and restrictions as to him may 
seem proper. — Gen. Sts. p. 208, c. 99, s. 1. 

2. Bond to be given to state. The person so ap- 
pointed shall give bond to the state, for the benefit of such 
towns as shall be injured by a breach of the condition 



SPIRITOUS LIQUOR. 377 

thereof, in such sum not less than ten thousand dollars as 
the governor may deem sufficient, with condition that such 
person shall furnish to such agents pure and unadulterated 
spiritous liquors, upon the terms and in conformity with the 
regulations and restrictions prescribed. — id. s. 2. 

3. Notice op appointment, etc. The governor, upon 
such appointment, shall notify such agents severally there- 
of, and of the terms, restrictions and regulations by him 
prescribed, in such manner as he shall deem proper ; and 
such agents thereafter shall purchase of the person so ap- 
pointed, and no other, all such spiritous liquors as may be 
required for sale in their towns. — id. s. 3. 

4. Town agents. If any such agent shall adulterate any 
spiritous liquor which he may keep for sale, or shall buy 
any spiritous liquor of any other person than the person so 
appointed by the governor, he shall forfeit for each offence 
fifty dollars, for the use of the town. — id. s. 4. 

5. State not liable, etc. No such appointment shall 
pledge the credit of the state for the payment of any liquors 
purchased by any town agent. — id s. 5. 

6. Selectmen to appoint. One or more agents, not ex- 
ceeding three, shall be appointed by the selectmen of each 
town, except such as have voted that no such appointment 
be made, for the sale of spirit, who shall hold their offices 
for one year, or until another is appointed ; but may be re- 
moved at the pleasure of the selectmen. — id. s. 6. 

Form of appointment, s. 12, post. 

7. No inn-keeper or keeper of any place of public en- 
tertainment shall receive such appointment. — id. s. 6. 

8. Sales by town agent. Such agent may sell spirit- 
ous liquor to be used in the arts, and for medicinal, me- 
chanical and chemical purposes, and wine for the commem- 
oration of the Lord's supper, and for no other use or 
purpose whatever. — id. s. 7. 

9. False statements to agent. If any person purchas- 
ing any spiritous liquor shall intentionally make to such 
agent any false statement regarding the use to which such 
liquor is intended by the purchaser to be applied, he shall 
for the first offence be fined ten dollars, and for any subse- 
quent offence twenty dollars, for the use of the town. — id. s. 8. 

10. Compensation of agent. Such agent shall receive 
for his services such fixed and stipulated compensation as 



378 SPIRITOUS LIQUOR. 

the selectmen shall prescribe, which shall not be increased 
or diminished by reason of the amount of sales made ; and 
he shall not be interested, except as an inhabitant of the 
town, in said liquor, or in the purchase or sale or profits 
thereof. — id. s. 9. * 

11. Sale, regulations for. Such agent shall conform 
to such rules and regulations as the selectmen may pre- 
scribe ; shall keep, and when required exhibit to them, an 
accurate account of all his purchases, showing the date, 
kind, quantity and price of the liquor bought by him, and 
of whom ; the date, kind, quantity and price of the liquor sold 
by him ; the name of the purchaser, and the use for which on 
each sale the liquor was sold, as stated by the purchaser ; 
and shall pay over so much of the proceeds of sales as the 
selectmen direct to the treasurer of the town. 

12. The form op appointment, with the rules etc., maybe : 
To A B of the town of : 

Having confidence in your integrity and prudence we 
hereby appoint you an agent for the sale of spirit, as pro- 
vided by chapter 99 of the General Statutes, and to hold 
your office for one year or until another is appointed unless 
you shall be removed by the selectmen of said town. 

You shall conform to the following rules and regulations : 

I. You shall not make any purchase upon the credit of 
the town. 

II. You shall sell for cash only. 

III. You shall not sell to any person who is known to be 
habitually or occasionally intoxicated. 

IY. You shall not sell to any minor except upon the 
written order of his parent, master or guardian, or the 
written prescription of a physician. 

Y. You shall not sell in the night time nor upon the 
Sabbath except in cases of urgent necessity. 

YI. You shall keep an accurate account of your pur- 
chases and sales, with the particulars required by section 11 
of said chapter. 

VII. You shall sell at per cent, gross profit upon 

the first purchase. 

Witness our hands this — day of 18 — . 

S Selectmen of 
the town of 



SPIRITOUS LIQUOR. 379 

This should be recorded by the town clerk as in s. 42, 
p. 84, ante, and an indorsement made of the record upon 
the appointment as in s. 44, p. 85, ante. 

(a)' These rules must not be made so stringent as to defeat the object of the law, or the 
selectmen will be subject to indictment. — 42 R. 125 ; Digest, p. 586, ss. 9, 10. 

(b) The regulations may prohibit any purchase upon credit of the town, and the ap- 
pointment containing the prohibition being recorded, the seller is charged with notice 
and cannot recover against the town, unless the town with a knowledge of the way they 
were purchased receive the liquors and apply them to its use. — 42 R. 125; Digest, p. 586, 
ss. 9-13. 

In the absence of any prohibition, a purchase upon the credit of the town is valid, and 
the selectmen may give a note for the price. — il R. 32 ; Digest, p. 586, s. 15. 

(c) In the absence of any regulations by the selectmen upon the subject, a sale by the 
town agent upon credit is legal and a note given for the price valid.— 42 R. 324 ; Digest, 
p. 586, s. 14. 

The form of removal may be as follows : 
To , of the town of : 

You are hereby removed from the office of agent for the 
sale of spirit and will turn over all property, books and 
papers pertaining to your agency to of said town. 

Given, etc. 

This should be served and a record made by the town 
clerk as in ss. 9, 10, p. 89, ante, and (d), s. 42, p. 85, ante. 

13. Annual report, etc. Such agent shall sell such 
liquors at the profit determined by the selectmen, and, 
when required, shall exhibit to them all books, bills, re- 
ceipts and papers of every kind relating to his dealings 
and accounts, and, before the first day of March annually, 
shall make a report under oath of all his purchases and the 
costs thereof, and of all sales and the proceeds thereof, 
specifying the number of sales, the quantities and kinds 
sold for each of the purposes for which he is authorized to 
sell, and the quantity, kind and cost of all liquor remain- 
ing on hand at the date of such report. — id. s. 11. 

14. Record op appointment. Every such agent shall 
receive from the selectmen a certificate of his appointment, 
with the rules and regulations prescribed for his observ- 
ance, which shall be recorded by the clerk of the town, 
id. s. 12. 

15. Illegal sales by agent. If any such agent shall 
knowingly sell any spiritous liquor for any other purpose 
than those for which he is hereby authorized to sell the 
same, or shall knowingly and intentionally violate any rules 
herein prescribed, or any rule or regulation of the select- 



380 SPIRITOUS LIQUOR. 

men, he shall be fined fifty dollars ; and for any subsequent 
offence he shall be fined fifty dollars, and be imprisoned not 
exceeding ninety days. — id. 

16. By others. If any person not being an agent of a 
town for the purpose of selling spirit shall sell or keep for 
sale any spiritous liquor, in any quantity, he shall be fined 
fifty dollars ; and for any subsequent offence he shall be 
fined one hundred dollars, or be imprisoned (1) not exceed- 
ing ninety days, or both. — id. s. 13. 

(a) Every sale of spiritous liquor in this state is presumed to be illegal till the contrary 
i s shown by the production of a proper license, and when illegal there can be no recovery 
for the price. 

But such liquors are property and are under the protection of the constitution. They 
maybe attached and sold on execution. A purchaser in possession, though by a sale 
from an unlicensed person, may maintain trespass against any one who takes them away 
without legal authority. See Digest, p. 586, ss. 1-4; 1 Grayl; 3 do. 536. 

(b) Prohibitory laws are unconstitutional.— Digest, p. 586, s. 5; 24 Pick. 352; 12Cush. 
506. 

(c) Ale is not within the prohibition, but may be so mixed with spiritous liquor that a 
sale of the compound would be unlawful.— 44 R. 511 ; Digest, p. 229, s. 196 : 6 Cush. 247 ; 6 
Met. 14. 

To subject the party to the penalty the sale must be complete. — 33 R. 183; Digeit, p. 
230, s. 200 ; 6 Gray, 9. 

A married woman is liable though the sale was made by her as servant of her husband, 
if done in his absence.— 35 R. 207 ; Digest, p. 230, s. 205. See also 2 Gray, 510; 14 Gray, 14, 
389; 1 Allen, 4. 

17. Common seller. If any person not being an agent 
as aforesaid shall be a common seller of spiritous liquor, 
he shall be fined one hundred dollars, and be imprisoned 
not less than three nor more than six months. — id. s. 14. 

18. Justice or police court. Whenever, upon pro- 
ceedings had before a justice or police court for any offence 
in this chapter mentioned, the accused shall plead guilty, 
or nolo contendere, the said justice or court shall have the 
power of final judgment and sentence. — id. s. 15. 

19. Appeal waived. If upon such proceedings the accused 
shall elect a trial by such justice or court, and waive his 
right of appeal by writing filed with said justice or court, 
the said justice or court shall have jurisdiction finally to 
hear, try and determine such case, to render judgment, im- 
pose sentence and issue process for the execution thereof; 
and such judgment shall be final and conclusive. — id. s. 16. 

20. Order to recognize. If upon such proceedings the 
accused shall plead not guilty, and the justice or court, on 
hearing the evidence, is of opinion that he is guilty of the 
offence charged, the said justice or court shall order such 
offender to recognize, with two or more sufficient sureties, 
in a sum not less than two hundred nor more than four 



SPIRITOUS LIQUOR. 381 

hundred dollars, to appear at the next trial term of the su- 
preme court for said county, and abide the order of said 
court, and in the meantime to be of good behavior, and 
not to violate any provision of this chapter, and stand com- 
mitted till the order is complied with. — Gen. Sts. p. 210, 
c. 99, s. 17. 

21. Former conviction, etc. In any complaint or indict- 
ment against any person, for a violation of any provision of 
this chapter other than the first offence, it shall not be 
requisite to set forth particularly the record of a former 
conviction, but it shall be sufficient (1) to allege, briefly, 
that such person has been convicted of a violation of any 
provision of this chapter, as the case may be. — id. s. 18. 

(1) Form of indictment, see Digest, p. 229, ss. 192-195, p. 230, ss. 199, 201, 203, 206, 207 » 
6 Gray, 482 ; 8 do. 480 ; 14 do. 81, 374 ; 2 do. 503. 

22. Amendments. Such allegation may be amended (1) 
without terms, in any stage of the proceedings before final 
judgment, as matter of right ; and any process under this 
chapter legally amendable may be amended, on motion, in 
any stage of the proceedings before final judgment. — id. 

(1) This is held to he unconstitutional.— 3 Gray, 458. 

23. Delivery prima facie a sale. The delivery of 
spiritous liquor in or from any store, shop, warehouse, 
steamboat, or other vessel, or any vehicle of any kind, or 
any shanty or tent, or any building or place used for the 
purposes of traffic, or any dwelling-house or dependency 
thereof, if any part of the same be used as a public eating- 
house, grocery, or other place of common resort, shall be 
deemed (1) prima facie evidence of a sale. — id. s. 19. 

(1) This has been held in Massachusetts to be constitutional. — 1 Gray, 1, Thomas, J. 
dissenting ; 7 Gray, 222 ; 14 do. 47. 

24. Agents and clerks must testify. No clerk, servant 
or agent of any person accused of a violation of this chap- 
ter shall be excused from testifying against his principal for 
the reason that he may thereby criminate himself; but no 
testimony so given by him shall, in any prosecution, be 
used as evidence, either directly or indirectly, against him, 
nor shall he be thereafter prosecuted for any offence so dis- 
closed by him. — id. s. 20. 

25. Selectmen to prosecute. The selectmen of every 
town shall prosecute at the expense of the town every per- 



382 SPIRITOUS LIQUOR. 

son guilty of a violation of any previous section of this 
chapter, of which they can obtain reasonable proof. — id. s. 
21. 

26. Others may prosecute. But this provision shall not 
be construed to prevent any person from making complaint, 
and instituting and carrying on prosecutions for such offenc- 
es ; and such complainant shall be entitled to one half of 
every fine collected through such prosecutions. — id. 

27. Wife, etc., may forbid sales. The husband, wife, 
parent, child, brother, sister, or other near relative, guardi- 
an or employer of any person who has the habit of drink- 
ing spiritous liquor to excess, may give notice in writing 
by him or her signed, to any person not to furnish any spir- 
itous liquor to the person who has such habit. — id. s. 22. 

The form of such a notice may be : 
To , of the town of : 

You are hereby notified not to furnish any spiritous liquor 

to my husband [brother etc.], , of the town of 

, as he has the habit of drinking to excess. 

Dated at said , this — day of , 18 — . 



Care should be taken that a copy of the notice be pre- 
served by the person serving it, with a minute upon it, signed 
by him, of the time of service. 

28. And sue the seller. If the person so notified shall 
furnish any spiritous liquor, for a consideration or other- 
wise, to the person who has such habit, at any time within 
one year after such notice given, the person giving such no- 
tice may, in an action of tort brought by him or her, recov- 
er of the person so notified any sum, not less than fifty 
dollars nor more than five hundred dollars, which may be 
assessed by the jury as damages ; and any married woman 
may bring such action in her own name, and recover such 
damages to her own use. — id. 

29. Seizure of liquor. Any spiritous liquor kept for 
sale in violation of law, with the casks, bottles and vessels 
containing the same or used in the sale thereof, may be 
seized, upon a warrant issued by a justice or police court, 
founded upon a complaint charging the same, and upon due 
proceedings may be adjudged forfeited, and disposed of ac- 
cording to law. 



SPIRITOUS LIQUOR. 383 

(a) Such, a statute is constitutional. — 6 Gray, 435, 491 ; 7 do. 354. A warrant under 
this section need not name the owner of the liquors, if it names the person in whose 
possession they are found.— 6 Gray, 491. Replevin will not lie against the officer for 
liquors thus seized and in his possession by virtue of a legal complaint and warrant. — 6 
Gray, 491; 43 R. 473, 3 do. 76. 

30. Domestic wine or cider, etc. Nothing in this chap- 
ter contained shall be construed to prevent the sale or 
keeping for sale of domestic wine or cider unmixed with 
spiritous liquor, except when sold to be drunk on or about 
the premises where sold ; nor to prohibit the sale or keep- 
ing for sale by the importer thereof, in the original casks 
or packages in which it was imported, of any foreign spir- 
itous liquors imported under the authority of the laws 
of the United States ; nor to prohibit the sale of any spir- 
itous liquor by an agent of a town duly appointed for the 
sale thereof to any other such agent. — id. s. 24. 

31. Drunkard, arrest of, etc. If any person shall be 
drunk in any highway or in any public building or place, or 
shall be drunk in his own house or any private building or 
place disturbing his family or others, he may be arrested 
and detained till sober, and fined from one to ten dollars, 
or be imprisoned not over thirty days. — id. s. 25. 

32. If he disclose, discharged. If before conviction 
such person shall disclose of whom and where he obtained 
the liquor producing such drunkenness, file his complaint 
on oath against the person furnishing the same, and testify 
fully on his trial in relation thereto, he shall be discharged, 
—id. s. 26. 

33. No indictment after one year. No indictment shall 
be found for any violation of this chapter, unless the offence 
was committed within one year before the first day of the 
court at which the offence is prosecuted. — id. s. 27. 

34. Paupers and spendthrifts. No person shall sell, 
give, or otherwise furnish to any pauper or person commit- 
ted to any house of correction, any spiritous liquor what- 
ever, except by permission of the keeper thereof ; or to any 
spendthrift or idle person under guardianship, except by 
permission of his guardian. — Gen. Sts. p. 510, c. 252, s. 12. 



384 



SHOWS AND EXHIBITIONS. 



CHAPTER LXVIII. 



SHOWS AND EXHIBITIONS. 



License to exhibit, s. 3. 

Must be paid for, s. 3. 
Penalty for violating law, s. 4. 
Selectmen may license, s. 3. 



To prosecute for violating, s. 4. 
Shows must be licensed, s. 1. 
Theatricals must be licensed, s. 1. 



1. No shows without a license. No showman, tumbler, 
rope-dancer, ventriloquist or other person shall for pay ex- 
hibit any feats of agility or of horsemanship, or sleight of 
hand, rope-dancing or feats with cards, or any animals, 
wax figures, puppets or other show, without a license from 
the selectmen of the town. — Gen. Sts. p. 211, c. 100, s. 1. 

2. Nor theatres. No theatrical or dramatic representa- 
tion shall be performed or exhibited, unless a license there- 
for shall first be obtained from the selectmen of the town, 
—id. s. 2. 

3. License, requisites of, etc: Every such license (1) 
shall be in writing, and shall specify the days such person 
is allowed to perform or exhibit ; and every sucli person 
shall pay in advance for such license, for the use of the 
town, a sum not less than ten dollars nor more than three 
hundred dollars for each day such person shall perform or 
exhibit. — id. s. 3. 

(1) The form of such a license may be as follows : 
To : 

You are hereby licensed to exhibit [state what] in the town of , on the — and — 

days of next, the sum of — dollars having been paid to us for the use of said town 



by you for this license. 
Given under our hands this - 



day of 



-,18-. 



:;} 



Selectmen of 



4. Penalty. If any person shall violate the provisions 
of this chapter, he shall for every such offence be punished 
by a fine not less than one nor more than five hundred dol- 
lars, one-half for the use of the town ; and it shall be the 
duty of the selectmen to prosecute for every violation of 
this chapter. 



NUISANCES INJURIOUS TO HEALTH. 



385 



CHAPTER LXIX. 



NUISANCES INJURIOUS TO HEALTH. 



Expenses of removing nuisances, ss. 9, 
13. 

Occupant liable for, s. 9. 

Owner liable for, s. 9. 

Selectmen to advance, s. 13. 
Health officers, choice of, s. 1. 

Compensation and fees of, ss. 9, 13. 

May enter buildings, etc., ss. 4, 5. 

May make regulations, s. 1. 

May remove nuisances, ss. 5, 10. 

May sue for penalties, s. 3. 

Must be sworn, s. 1. 

Shall have powers of sheriff, s. 6. 

Tenure of office, s. 1. 

To render an account annually, s. 13. 
Leaving nuisances, penalty for, s. 10. 



Notice to remove nuisances, s. 5. 

Form of notice to remove, s. 5 (a). 

When unnecessary to be given, s. 8. 
Privies and pig styes, s. 12. 
Regulations by health officers, s. 2/ 

Form of regulations, s. 2 (a). 

Penalty for violating, s. 3. 
Resistance to health officers, ss. 6, 7. 
Selectmen to approve regulations, s. 2. 

To pay health officers, s. 13. 

To act as health officers, s. 1. 
Slaughter-houses, rules for, s. 11. 
Warrant to search buildings, etc., s. 4. 

Application for, form of, s. 4 (a). 

Form of warrant, s. 4 (b). 



1. Health officers to be chosen or selectmen to act as 
such — see ante, pp. 76-7, ss. 1, 2 ; Gen. Sts. p. 97, s. 4. 

They must be sworn. See ante, p. 77, ss. 6, 7. 
They hold over. See ante, p. 77, s. 5. 

2. Regulations by. The health officers may make reg- 
ulations for the prevention and removal of nuisances and 
such other regulations relating to the public health as in 
their judgment the health and safety of the people may re- 
quire, which shall take effect when they shall be approved 
by the selectmen, recorded with such approbation by the 
town clerk, and published in some newspaper printed in 
the town, or copies thereof posted in two or more public 
places in the town. — Gen. Sts. p. 212, c. 101, s. 1. 

(a) The form of such regulations may be similar to those by firewards [ante, p. 367, 
s. 10 (a), (b) ], and the selectmen may certify at the bottom, after the signatures of the 
health officers, thus : 

We approve the foregoing regulations. 

Witness our hands, at , this — day of , 18 — . 

, ) Selectmen of 



3. Penalties for. Any person willfully violating such 
regulations shall incur a penalty of ten dollars, to be re- 
covered by the health officers in the name of the town. — id. 

4. Warrant to search, etc. Health officers and each 
of them shall inquire into all nuisances and other causes 
of danger to the public health, and whenever they ishall 
know or have cause to suspect that any nuisance or other 
thing injurious to the public health is in any building, ves 

25 



386 NUISANCES INJURIOUS TO HEALTH. 

sel or inclosure, they shall make complaint under oath to 
some justice who shall issue a warrant directed to them to 
search such building, vessel or inclosure ; and they may, in 
the day time, forcibly enter therein and make such search, 
—id. s. 2. 

(a) The form of a complaint by a health officer may be : 

To , a Justice of the Peace in and for the county of : 

A B , of , in said county, one of the health officers of said town, 

complains and gives said justice to understand that he has cause to suspect that there 
is a nuisance in [describe the building, vessel or inclosure, as the case may be] which 
is injurious to the public health; 

Wherefore he prays said justice to issue a warrant to search such [building, vessel 
or inclosure, as the case may be]. 

A B . 

ss. July — , 18—. Then the said A B made oath that the fore- 
going complaint, by him signed, is in his belief true. 
Before me, , Justice of the Peace. 

(b) The form of warrant following the complaint may be : 

THE STATE OF NEW HAMPSHIRE. 

[L. s.] To A B , of , one of the Health Officers of said town: 

Pursuant to the foregoing complaint you are hereby authorized with necessary and 

proper assistants to enter in the day time the [building, vessel or inclosure, as the case 

may be], described in said complaint, and there search for the nuisance in said 

complaint mentioned. 

Given under my hand and seal this — day of , 18 — . 

, Justice of the Peace. 

5. Notice to remove. The health officers may notify 
the owner or occupier of any building, vessel or inclosure 
to remove or destroy any nuisance or other thing therein 
deemed by them, on examination, to be injurious to the 
public health, within a time limited ; and in case such 
owner or occupier, after such notice in writing, given to 
him or left at his abode, shall neglect to comply therewith, 
the said health officers may forcibly enter such building, 
vessel or inclosure, and cause the said nuisance or other 
thing aforesaid to be removed or destroyed. — id. s. 3. 

(a) The form of notice to remove a nuisance may be : 

To , of . 

You are hereby notified within — days to remove or destroy a large quantity of 
offal and animal matter collected in [describe the building, vessel or inclosure, as 
the case may be] and which is deemed by us to be injurious to the public health. 

Witness our hands at , this — day of , 18—. 

, ) Health Officers of 



A copy of the notice with the evidence of service, should be kept. 

6. Powers of a sheriff. They may employ such assist- 
ants and laborers as may be necessary, and if resisted shall 
have the same powers as sheriffs have by law to command 
assistance. — id. s. 4. 



NUISANCES INJURIOUS TO HEALTH. 387 

7. Resistance, penalty for. Any person willfully resist- 
ing them or their assistants or laborers, in making such 
search or removing such nuisance or other thing aforesaid, 
shall be imprisoned not exceeding twelve months, or fined 
not exceeding five hundred dollars. — id. 

8. When no notice required. When the owner of any 
building, vessel or inclosure is unknown to the health offi- 
cers, or does not reside in town, and the same is unoccu- 
pied, or the occupant is in their opinion unable to remove 
the same, they may, without any previous notice, immedi- 
ately cause any nuisance or other thing by them deemed 
injurious to the public health found therein to be removed 
or destroyed. — id. p. 213, s. 5. 

9. Expense by whom paid. The owner or occupier of 
any building, vessel or inclosure shall be liable to pay the 
expense of the removal or destruction of any such nuisance 
or other thing as aforesaid, including the fees of the health 
officers who order the same to be removed ; and the same 
may be recovered by action, to be brought by the health 
officers in the name of the town. — id. s. 6. 

10. Leaving nuisances. If any person shall leave, or 
cause to be placed or left, in or near any highway, street, 
alley, public place, or wharf, or in any water where the 
current will not remove the same, any substance liable to 
become putrid, or offensive, or injurious to the public health, 
he shall incur a penalty of not more than ten dollars nor 
less than one dollar, to be recovered by the health officers 
in the name of the town. And the health officers shall 
remove the same. — id. s. 7. 

11. Slaughter-houses. If any person shall use or oc- 
cupy any building in the compact part of any town for a 
slaughter-house, for trying tallow, or for currying leather, 
or for the deposit of green pelts or skins, without permis- 
sion in writing of the health officers, he shall incur a pen- 
alty of ten dollars for each month in which the said build- 
ing shall be so occupied. — id. s. 8. 

12. Privies, pig styes. If any person shall erect or 
continue any house of easement or privy within forty feet 
of any street, or of the dwelling, shop or well of any other 
person, unless the same is vaulted six feet deep and suffi- 
ciently secured and inclosed, or shall erect or keep any pen 
or stye for swine so near the dwelling-house of another as 



388 



SMALL-POX AND PESTILENTIAL DISEASES. 



in the judgment of the selectmen to be a nuisance, he 
shall incur a penalty of ten dollars, and a like penalty for 
each month he shall continue the same after due notice of 
such judgment. — id. s. 9. 

13. Compensation. The health officers shall be paid a 
reasonable compensation from the town, and all expenses 
incurred by them in the execution of their duty shall be 
paid by the town ; and the selectmen are required to ad- 
vance to them such sums as may be necessary, of which 
and of all their receipts and disbursements the health offi- 
cers shall annually, before the annual town meeting, render 
an account to the selectmen, to be laid before the town. — 
id. s. 10. 



CHAPTER LXX. 



SMALL-POX AND PESTILENTIAL DISEASES. 



Agents for vaccination, ss. 1, 2. 
County commissioners, licenses by, s. 7. 
Health officers to make regulations, 
s.4. 

And remove the sick, s. 3. 

And sue for penalties, ss. 4, 8. 
Infectious matter, bringing in or using, 

s. 5. 
Inoculation forbidden, s. 5, 

When permitted, s. 6. 



Medical attendance, liability of town, s. 

2(a). 
Pest-houses licensed, when, s. 7. 

Bond to be given to county, s. 7. 

Consent of town necessary, s. 7. 

Leaving, penalty for, s. 8. 

Regulations for, s. 7. 
Quarantine, laws relating to, s. 9. 
Selectmen, authority of, ss. 1, 2. 

In employing physicians, s. 2 (a). 



1. Agents for vaccination. Any town may appoint (1) 
an agent for vaccination, who shall at all times be provided 
with suitable matter for communicating the kine-pox, and 
may vaccinate all persons at the expense of the town who 
have not had the small-pox or the kine pox, and shall re- 
ceive a suitable compensation therefor, to be paid by the 
selectmen. — Gen. Sts. p. 213, c. 102, s. 1. 

(1) This may be done under an article "to choose all necessary town officers. "—24 R. 
g. 208 ; Digest, p. 608, s. 59. 

2. Selectmen may appoint. Such agent may be ap- 
pointed (1) by the selectmen of the town, whenever in 
their opinion the health of the inhabitants of said town, 
by reason of the spreading of the small-pox, shall require 
it.— id. 

(1) It is not necessary that the appointment be in writing, although it is better that it 
should be— 28 R. 11. 



SMALL-POX AND PESTILENTIAL DISEASES. 389 

(a) Selectmen may bind the town for medical services in vaccinating, but not for 
medical attendance upon persons sick with the small-pox, but who are not paupers. — 
28 ft. 9; Digest, p. 610, s. 107. 

3. The health officers may remove any person infected 
with the small-pox, the malignant cholera or other malig- 
nant pestilential disease to some suitable house, to be by 
them provided for that purpose, if it can be done without 
endangering the life of such person. — id. p. 214, s. 2. 

4. And make such regulations respecting such house 
and for preventing unnecessary communication with such 
persons or their attendants as they may think proper ; and 
if any person shall willfully violate the same he shall forfeit 
fifty dollars, to be recovered by such health officers in the 
name of the town. — id. 

5. Inoculation forbidden. If any person shall, with in- 
tent to communicate the small-pox, bring into this slate or 
use any infectious matter, or shall inoculate himself or any 
other person witli the small-pox, or be inoculated therefor, 
he shall incur a penalty of one hundred and fifty dollars, 
to be recovered by any person who will sue for the same, 
one-half to his own use and the other half for the use of 
the town in which the offence is committed. — id. s. 3. 

6. When permitted. If any person shall break out with 
small-pox in the natural way, and the health officers shall 
judge that he may remain without endangering others than 
his own family, they may give license to any persons who 
have been exposed to the danger of taking the disease to 
be inoculated and to remain in the same house ; and the 
provisions of this chapter and all regulations of the health 
officers in relation to other licensed pest-houses, shall apply 
to such house and its inmates. — id. s. 6. 

7. Pest-houses licensed. The county commissioners, 
on application, may license any physician to establish a 
house for inoculating persons for the small-pox in any town 
which shall consent thereto, under such regulations as they 
may prescribe ; and such physician shall give bond to the 
county treasurer in the sum of three thousand dollars, con- 
ditioned that he will use every means and precaution in his 
power to prevent the spreading of the disease, and that he 
will not inoculate any person nor willingly suffer any per- 
son to be inoculated or to have said disease in any other 
place than said house, and will not suffer any person to de- 
part from such house until he is effectually cleansed, and 



390 DISORDERLY AND VICIOUS PERSONS AND CONDUCT. 

will give to such person a certificate thereof under his 
hand. — id. s. 4. 

8. Leaving pest-house. If any person, having had the 
small-pox in any licensed house or being employed therein, 
shall leave the same without such certificate, or be found 
without the same within one month afterward, he shall in- 
cur a penalty of fifty dollars, to be recovered by the health 
officers in the name of the town. — id. s. 5. 

9. Quarantine. See Gen. Sts. p. 215, c. 103. 



CHAPTER LXXI. 



DISORDERLY AND VICIOUS PERSONS AND CONDUCT. 



Ball-playing in the streets, s. 1. 
Bathing in exposed places, s. 6. 
Beggars, s. 13. 
Bonfires, s. 13. 
Brawls and tumults, s. 1. 
Cannon, discharge of, s. 5. 
Cart, dray or sled, s. 12. 
Common drunkard, s. 14. 

Fiddler, s. 14. 

Piper, s. 14. 

Bailer or brawler, s, 14. 
Common jail, sentence to, s. 14. 
Defacing buildings, fences or signs, s. 3. 
Disorderly persons, s. 14. 
Disorders in public places, s. 1. 
Drumming in streets, s. 5. 
False cry of fire, s. 5. 
Fast driving in streets, s. 12. 
Firing guns, s. 5. 

Fire-crackers, squibs and rockets, s. 5. 
Fortune-tellers, s. 14. 
Friction matches, s. 5. 
Fruits and vegetables protected, s. 3. 
Gaming and juggling, s. 4. 
Gardens and yards protected, s. 3. 



House of correction, sentences to, s. 14. 

Towns may provide, s. 17. 
Idle and disorderly persons, s. 14. 
Indecent exposure, s. 6. 
Injuries to property, s. 14. 
Lascivious persons, s. 14. 
Leaving carriages, etc., in streets, ss. 7. 

8. 
Night-walkers, s. 14. 
Obscene books, figures, etc., s. 2. 
Penalties imposed, ss. 13, 14. 
Police court, towns may provide, s. 16. 
Public places, offences in, s. 1. 
Repeal of s. 17, c. 252, Gen. Sts., see s. 15. 
Rogues and vagabonds, s. 14. 
Robbing gardens and yards, s. 3. 
Rubbish in streets, ss. 7. 8. 
Sidewalks, use of, s. 10. 
Sign-boards, injuries to, s. 3. 
Snowballing in streets, s. 1. 
Spendthrifts, s. 14. 
Streets, offences in, s. 1. 
Stubborn child or servant, s. 14. 
Trees, shrubs and bushes protected, s. 3. 
Wood and lumber in streets, ss. 7, 8. 



1. In streets and public places. No person shall make 
any brawl or tumult, or, in any street, lane, alley or other 
public place, be guilty of any rude, indecent or disorderly 
conduct, or shall insult or wantonly impede any person 
passing therein, or throw any stones, bricks, snowballs or 
dirt, or play at ball or any game at which ball is used. — 
Gen. Sts. p. 509, c. 252, s. 1. See ss. 5, 7, 8. 

2. Obscene books, etc. If any person shall issue, sell 
or circulate, or cause to be issued, sold or circulated, any 



* See Digest, p. 226, XII. 



DISORDERLY AND VICIOUS PERSONS AND CONDUCT. 391 

obscene book, pamphlet, newspaper, print or picture, he 
shall be fined from one to ten dollars, or imprisoned from 
five to thirty days.— Gen. Sts. p. 517, c. 256, s. 9. 

No person shall sing or repeat, or cause to be sung or 
repeated, any lewd, obscene or profane song, or shall repeat 
any lewd, obscene or profane word, or write or mark in any 
manner any obscene or profane word, or obscene or lasciv- 
ious figure or representation, on any building, fence, wall, 
post or other thing whatever. — Gen. Sts. p. 509, c. 252, s. 2. 

3. Injuries to property. No person shall wantonly 
injure or deface any building, fence, wall, post, sign-board 
or sign ; or shall wantonly cut or injure any tree standing 
in any street, highway or public place ; or shall rob any 
garden or field of fruit or vegetables ; or shall wantonly 
injure any trees, shrubs or bushes growing in any garden, 
field or yard ; or shall, without lawful permission, climb on 
or over any fence of any garden or yard. — Gen Sts. p. 509, 
c. 252, s. 3. 

4. Gaming and juggling. No person shall use any 
juggling or unlawful games or plays, or play at any game 
whatever for money or other property. — id. p. 510, s. 4. 
See also Gen. Sts. p. 512, c. 254, as to gamblers and lottery- 
dealers. 

5. Fire-arms, drums and rockets. No person shall, 
within the compact part of any town, fire or discharge any 
cannon, gun, pistol or other fire-arms, or beat any drum, 
except by command of a military officer having authority 
therefor, or fire or discharge any rockets, squibs, crackers, 
or any preparation of gunpowder, except by permission of a 
majority of the police officers or selectmen in writing, or 
make any bonfire, or improperly use or expose any friction 
matches, or knowingly raise or repeat any false cry of fire. 
— id. s. 5. 

6. Bathing. No person shall, within the view of any 
dwelling-house, or of any public road, street or wharf, in 
the day-time, without necessity, bathe or swim, or expose 
his person indecently in dressing or undressing for the 
purpose of swimming or bathing, or otherwise. — id. s. 6. 

7. Leaving carriages or rubbish. No person shall, 
without necessity, place or leave, or cause to be placed or 
left, in any street, lane, alley or public place, for two hours 
by day or one hour by night, any sled, wheelbarrow, cart, 



392 DISORDERLY AND VICIOUS PERSONS AND CONDUCT. 

dray, chaise or other carriage, or any box, crate, cask, tub 
or other vessel ; or place or throw, or cause to be "placed or 
thrown, into any such street, lane, alley, or public place, 
any wood, lumber, manure, dirt, or other matter that may 
impede the free passage of the same, and suffer the same 
to remain there two hours. — id. s. 7. 

8. Unless by license. See ante, p. 244, ss. 14, 15. 

9. Sidewalks, use of. No person shall, without neces- 
sity, drive any wheel carriage, sled or wheelbarrow on or 
over the side pavements or walks of any street, lane or 
alley, or ride or lead any horse thereon. — id. s. 10. 

10. Drunkenness and prostitution. No person shall be 
drunk in any street, alley or other public place, or shall be 
a common street-walker or prostitute. — id. s. 11. 

11. Fast driving. No person shall ride through any 
street or lane, in the compact part of any town, on a gallop, 
or at any swifter pace than at the rate of five miles an hour, 
—id. p. 511, s. 14. 

12. Cart, dray or sled. No person having charge of 
any cart, dray, sled or other carriage drawn by horses or 
oxen, shall suffer the same to pass through any street in the 
compact part of any town, without keeping with and care- 
fully attending the same, and keeping such horses or oxen 
under his command. — id. s. 15. 

13. Penalties. Any person convicted of any offence in 
this chapter mentioned shall be fined from one to twenty 
dollars, or imprisoned from five days to six months. — id. s. 
16. 

14. Any rogue, vagabond, lewd, idle or disorderly 
person ; any person going about begging; any person using 
any subtle craft, juggling, or unlawful game or play ; any 
person pretending to have knowledge in physiognomy or 
palmistry ; any person pretending for money to tell des- 
tinies or fortunes, or discover, by any spell or secret art, 
where lost or stolen goods may be found ; any common 
piper, fiddler, runaway, stubborn servant or child, common 
drunkard, night-walker, pilferer, or person wanton and 
lascivious in speech or behavior ; any common railer or 
brawler ; any person who neglects his employment, mis- 
spends his earnings, and does not provide properly for the 
support of himself and family ; shall be imprisoned in the 
house of correction in the town or county in which such of- 



POLICE OFFICERS AND NIGHT WATCHMEN. 



393 



fence is committed, and for want thereof, in the common 
jail, not exceeding six months. — id. s. 18. 

15. Repeal. Section 17 of c. 252 is repealed by s. 62, 
c. 1, of the Laws of 1868. 

16. A police court is provided for by statute in any town 
that shall so vote. — Gen. Sts. p. 398, c. 166. 

17. A house of correction may be provided by select- 
men, if authorized by a vote of the town. — Gen. Sts. p. 534, 
c. 268. 



CHAPTER LXXII. 



POLICE OFFICERS AND NIGHT WATCHMEN. 



Aid, officers may require, s. 18. 
Appointment by selectmen, 

Of night watchmen, ss. 10, 11. 

Of police officers, ss. 1, 2. 

Of special police, ss. 9, 10. 
Arrests by police and watchmen, ss. 

13-18. 
Certificate of oath to be made, s. 2. 
Jailer, duties of, s. 16. 
Night watchmen, ss. 11-18. 



Official oath required, ss. 2, 9. 
Police officers, ss. 1-4. 

Authority of, and fees, ss. 6, 7, 13-18. 
Regulations by police officers, ss. 7, 8. 
Removal of police officers, ss. 1, 4. 
Selectmen, power and duties of, ss. 1, 2, 

8,9. 
Special police officers, ss. 9, 10, 13-18. 
Vacancies may be filled, s. 5. 



1. Selectmen may appoint. In towns where the law re- 
lating to offences against the police of towns is in force (1), 
the selectmen shall appoint police officers not exceeding 
seven, who may be removed at the pleasure of the select- 
men.— Gen. Sts. p. 480, c. 235, s. 3. 

(1) Such law is now general, s. 17 of c. 252, Gen. Sts., having been repealed by s. 67 
of c. 1 of the Laws of 1868. 

2. When and how. Such appointment shall be made in 
March, unless otherwise provided by law or by a by-law, by 
writing, under the hands of the selectmen, and recorded, 
with a certificate of the oath of office thereon, by the town 
clerk ; and such police officers shall hold their offices for 
one year, unless sooner removed. — id. s. 4. 

3. The form of appointment may be : 

To of the town of : 

We hereby appoint you police officers of said town, and 
upon taking the oath of office and causing this appointment 
with a certificate (1) of such oath thereon to be record- 



394 POLICE OFFICERS AND NIGHT WATCHMEN. 

ed (2) by the town clerk you shall have all the powers of. 
police officers for the term of one year unless sooner re- 
moved. 

Witness our hands this — day of , 18 — . 

) Selectmen 

J of 



(1) See ante, p. 77, s. 7, p. 79, s. 17. 

(2) See ante, p. 85, ss. 42 (d), 44. 

4. A removal may be as follows : 

To of the town of .* 

You are hereby (1) removed from the office of police offi- 
cer for said town. 

Witness our hands this — day of , 18 — . 

) Selectmen 

V of 



(1) This of itself, upon being served as in s. 10, p. 90, puts an end to his rightful au- 
thority, but a record should properly be made as there stated. See ante, p. 85, s. 42 (c). 

5. Vacancies. If such appointment is not made at the 
time appointed, or if a vacancy (1) shall occur, the select- 
men may appoint at any time afterward. — id. s. 5. 

(1) See ante, p. 90, s. 12. 

6. Authority and fees. All police officers are, by virtue 
of their appointment, constables and conservators of the 
peace, and shall receive such compensation as may be voted 
by the town, and the same fees as (1) constables. — id. s. 6. 

(1) See ante, p. 81, s. 29. 

7. To make regulations. The police officers of any town 
may make regulations (1) for the stand of hacks, drays and 
carts, in any street, lane or alley ; for the height and posi- 
tion of any awning, shade or fixture in front of or near any 
building, and respecting any obstruction in any street, lane 
or alley, and the smoking of any cigar or pipe therein, or 
in any stable or other out-building ; and every violation of 
such regulations may be punished by fine of from one to 
twenty dollars, or by imprisonment from five days to six 
months. — id. s. 7. * 

(1) The general form of such regulations, etc., may be as in (a), s. 10, p. 367, ante. 

8. When to take effect. No such regulations shall 
take effect until they are approved (1) by the selectmen, 



POLICE OFFICERS AND NIGHT WATCHMEN. 395 

recorded with such approbation by the town clerk (2) and 
published, (3) or, if no newspaper is printed in the town, 
a certified copy thereof posted at two or more public (4) 
places therein. — id. 



(1) Such approval at the bottom may be as follows : 
Approved this — day of , 18 — . 



(2) See ante, p. 85, s. 42 (d). 

(3) See ante, p. 4, s. 30. 

(4) See ante, p. 36, s. 10 (c). 



Selectmen 
of 



9. Special police. The selectmen of any town, when 
they deem it necessary, may appoint (1) special police offi- 
cers, one of whom may be superintendent, and they shall 
continue in office during the pleasure of the selectmen. — 
id. p. 480, s. 1. 

(1) The appointment may be as follows: 

To of the town of .- 

We hereby appoint you special police officers of said town during the pleasure of the 
selectmen, and upon your taking the oath* of office, bylaw prescribed, you shall have 

the powers appertaining to your said office. The said shall be superintendent. 

Witness our hands this — day of , 18—. 

Selectmen 
of 



* See ante, p. 77, s. 7, p. 79, s. 17. 
The appointment takes effect without being recorded; but still a record is proper. 
See ante, p. 85, s. 42 (c), s. 44. 

10. Their duties. The selectmen, or superintendent 
under their direction, may employ such special police offi- 
cers, in such mode as may be deemed expedient, in the de- 
tection and conviction of criminals and the prevention of 
crime in their town, or they may be employed in the pres- 
ervation of order on public or special occasions. — id. s. 2. 

11. Night-watchmen. The selectmen of any town, be- 
ing authorized by vote of the town, may appoint watchmen 
for a walking night-watch, and fix their stations and limits, 
prescribe their duties, and contract for and pay them a 
reasonable compensation. — id. p. 481, s. 9. 

12. Appointment and duties. They shall be appointed 
and qualified in the same manner, and shall have while on 
duty the same powers, as police officers. — id. s. 10. 

13. Arrests. Every watchman may arrest (1) any per- 
son whom he shall find committing any kind of disorder 
or disturbance, or any crime or offence, or such as are 
strolling about the streets at unreasonable hours, who re- 
fuse to give an account, or may be reasonably suspected of 



396 POLICE OFFICERS AND NIGHT WATCHMEN. 

giving a false account, of their business or design, or who 
can give no account of the occasion of their being abroad. — 
id. s. 11. 

(1) The watchman should, as soon as practicable, proceed as in ss. 14-18, post. 

14. Upon view of an offence. Any officer (1), upon 
view of any crime or breach of the peace or offence against 
the police of towns, may arrest the offender, and forthwith 
carry him before the proper court or justice to answer for 
the offence.— Gen. Sts. p. 481, c. 236, s. 3. 

(1) By the word "officer," in this title, shall he intended any sheriff or deputy sheriff, 
mayor, or city marshal, constable, police officer, or watchman, or other person author- 
ized to make arrests in any criminal case.— Gen. Sts. p. 481, c. 236, s. 1. 

15. Between sunset and sunrise. If such arrest shall 
be made between sunset and sunrise, the person so arrested 
may be committed to the common jail, or bridewell, or 
house of correction, or otherwise detained in custody not 
exceeding twenty-four hours, within which time he shall be 
discharged or taken before a court or justice to answer for 
the offence. — id. s. 4. 

16. Jailer to detain. The request of the officer mak- 
ing such arrest shall be a sufficient authority for any keeper 
of a jail, bridewell, house of correction, or other officer or 
person, for keeping such person in custody agreeably to the 
preceding section.-— id. p. 482, s. 5. 

17. In the day-time. In all other cases, the officer 
arresting any offender without warrant shall promptly carry 
him before the police court or a justice, that a complaint 
may be made for the offence, and if he neglects to do so he 
shall forfeit fifty dollars. — id. s. 6. 

18. May require aid. Every officer in the execution of 
his office, in any criminal case, may require suitable aid ; 
and if any person, when so required, shall not give such 
aid, he shall be fined not exceeding ten dollars. — id. p. 481, 
s. 2. 



SUNDAY AND KELIGIOUS MEETINGS. 397 



CHAPTER LXXIII 



SUNDAY AND KELIGIOUS MEETINGS. 



Religious meetings, disturbers of, ss. 2, 

4,5. 
Removal of disturbers, ss. 4, 5. 
Sales near meetings, s. 7. 
Selectmen, duties of, ss. 3, 4. 

May command aid, s. 4. 
Shows near meetings, s. 10. 
Suxday law, violation of, ss. 1, 2, 8, 9. 



Arrests, by -whom made. ss. 4, 5, 11. 
Disorderly speaking in meeting, ss. 5, 6 
Disturbers of meetings, ss. 2, 4, 5. 
Horse-racing near meetings, s. 12. 
Labor on Sunday, ss. 1, 2. 
Limitations of prosecutions, s. 13. 
Marriage on Sunday valid, s. 1 (1). 
Penalties for violation of law, ss. 5, 6, 9 

Police officers, employment of, ss. 4, I Making will is not, s. 1 (1), 
12. Sureties for the peace, s. 6. 

May require aid, s. 4. 

1. Labor on Sunday. No person shall do any work, busi- 
ness or labor of his secular (1) calling, to the disturbance 
of others., works of necessity and mercy excepted, on the 
first day of the week, commonly called the Lord's day ; nor 
shall any person use any play, game, or recreation, on that 
day or any part thereof. — Gen. Sts. p. 514, c. 255, s. 3. 

(1) The statute does not apply to the making of a will on Sunday — 47 R. 27; nor to 
the solemnization of a marriage. — 47 R. 38, 39. 

It does prohibit any secular work, business or labor (works of necessity and mercy 
excepted), whether of a person's ordinary calling or not, if done in the presence of 
others, with or without their consent. — 47 "R. 27. See also Digest, p. 589. 

2. Rudeness in religious meetings. No person shall 
on the Lord's day, within the walls of any house of public 
worship or near the same, behave rudely or indecently, 
either in the time of public service or between the forenoon 
and afternoon services. — id. s. 4. 

3. Penalties. Any person offending against any provis- 
ion of the two last preceding sections of this chapter, shall 
forfeit a sum not exceeding six dollars nor less than one 
dollar, which shall be recovered by any selectman or police 
officer, for the use of the town. — id. p. 515, s. 5. 

4. Any selectman or police officer shall have power 
to remove any person behaving rudely or indecently in any 
meeting for public worship from the place of such meeting, 
and him detain until the close thereof, and the same right 
to command assistance as sheriffs have, and may prosecute 
for all violations of the third and fourth sections of this 
chapter. — id. s. 6. 

5. Disorderly speaking. If any person shall disturb 
any religious meeting, by speaking in the same so as to in- 
terrupt or prevent the stated and orderly proceedings and 



398 SUNDAY AND RELIGIOUS MEETINGS. 

exercises of such meeting, or shall make such disturbance 
while the people are assembling at or leaving their place of 
worship, and shall not desist therefrom when requested, he 
may be removed from such meeting or place of worship by 
any individual. — id. s. 7. 

6. Fines and sureties of the peace. Any person so 
offending shall be fined from one dollar to ten dollars, and 
may be required to recognize, wrth sureties, in a sum not 
less than fifty dollars nor more than one hundred dollars, 
to be of good behavior for one year. — id. s. 8. 

7. Sales of goods near place of meeting. No person, 
without permission from the managers of such assembly, 
shall keep any shop, tent, booth, wagon, or carriage, for the 
sale of, or shall sell, give, or expose to sale, any spiritous 
liquor, goods, or merchandise of any kind, within two 
miles of any public assembly convened for the purpose of 
religious worship ; but this shall not be construed to pre- 
vent any person from selling merchandise at the shop or 
store where he usually transacts business, nor from selling 
liquors in any place where he shall have received a license 
therefor before the appointment of such religious meeting ; 
nor to prevent any peddler from selling his goods to any 
person at the usual place of business or residence of such 
person. — id. s. 9. 

8. Sunday shop-keeping. No person shall keep open his 
shop, warehouse, cellar, restaurant, or workshop, for the 
reception of company, or shall sell or expose for sale any 
merchandise whatever, on the first day of the week, com- 
monly called the Lord's day ; but this section shall not be 
construed to prevent the sale of bread from bakeries or 
drugs and medicines. — id. s. 10. 

9. Penalties. If any person shall be guilty of a breach 
of either of the two preceding sections, he shall be fined 
not exceeding ten dollars, or imprisoned not exceeding 
thirty days, or both. — id. s. 11. 

10. Shows and racing near place of meeting. If 
any person shall be guilty of noisy, rude, or indecent be- 
havior, of exhibiting shows or plays, or promoting or en- 
gaging in horse-racing or gambling, at or near any religious 
meeting, so as to interrupt or disturb the same, he shall on 
conviction by any justice, be fined not exceeding ten dol- 
lars, or, if the offence is deemed by him of an aggravated 



SUNDAY AND RELIGIOUS MEETINGS. 899 

nature, such person may be held to recognize, with suffi- 
cient sureties, to appear at the supreme court next to be 
holden in such county, and, upon conviction before that 
court, he shall be fined not exceeding fifty dollars, or im- 
prisoned not exceeding ninety days. — id. s. 12. 

11. Arrests by whom. Any person, upon view of any 
offence described in this chapter, may apprehend the of- 
fender, and bring him before a justice for trial. — id. s. 13. 

12. Police officers, employment of. The ministers, 
elders, officers or managers of any religious or other public 
meeting or assembly, convened or about to be convened in 
any town, may, at their own expense, employ police officers 
of any other town in this state to preserve order among 
the persons attending and coming and going there ; and 
such officers so employed shall have the powers there which 
they have in the towns for which they are appointed. — 
id. p. 516, s. 14. 

13. Limitation of prosecutions. No prosecution for 
the violation of any provision of this chapter shall be sus- 
tained unless commenced within thirty days after the com- 
mission of such offence. — id. s. 15. 



I 



TITLE IX. 



CITIES. 

CHAPTER LXXIY.— General Powers of Cities and Wards. 

CHAPTER LXXV.— Mayors of Cities. 

CHAPTER LXXVL— Mayors and Aldermen and Common 

Council. 
CHAPTER LXXVIL— City Clerk and other City Officers. 
CHAPTER LXXVIIL— Powers of City Councils. 



CHAPTER LXXIV. 



GENERAL POWERS OF CITIES AND WARDS. 



Annual meeting, s. 7. 

But one balloting a day, s. 8. 

Check-list and voters, s. 5. 

City councils, s. 3. 

Common council, s. 3. 

Former statutes in force, s. 13. 

Government, in whom vested, s. 3. 

Jurors, drawing of, s. 12. 

Mayor and aldermen, s. 3. 

Moderator, choice of and duties, s. 7. 

Polls, when opened and closed, s. 8. 

Plurality elects, s. 9. 

Repeal of statutes by cities, s. 13. 



ehoice of and duties, ss. 7, 
11. 



Selectmen, 

12. 
State election, when held, s. 
Subset and sunrise, 

No balloting between, etc., s. 9. 
Tenure of office, s. 6. 
Town clerk, choice of and duties, ss. 7, 

10, 11. 
Towns, cities have powers of, s. 1. 

Laws relating to, apply, s. 2. 

Wards are towns, s. 4. 
Wards are towns, in what cases, 
Voters and check-list, s. 5. 



4. 



1. Towns, cities have powers of. All cities, now or 
hereafter incorporated, shall have, exercise and enjoy all 
the rights, immunities and privileges, and shall be subject 
to all the duties, incumbent upon or appertaining to the 
town corporations to which they succeed. — Gen. Sts. p. 101, 
c. 40, s. 1. 

2. Laws relating to towns, applicable. All provisions 
of statutes, now made or hereafter enacted, relating to 
towns, shall be understood to apply to cities ; and all such 



GENERAL POWERS OP CITIES AND CITY WARDS. 401 

provisions relating to the selectmen and town clerks of 
towns shall be construed to apply to the- mayor and alder- 
men and city clerks of cities respectively, unless a different 
intention appears. — id. s. 2. 

3. Government, in whom vested. The administration 
of all the fiscal, prudential and municipal affairs of any 
city, and the government thereof, shall be vested in one 
principal officer called mayor, a board of aldermen, and a 
common council ; and the said mayor and aldermen and 
common council, in their joint capacity, shall be called the 
city councils. — id. s. 3. 

4. Wards are towns. Each ward into which a city may 
be divided by law or in pursuance of law shall be a town 
for the purpose of the election (1) of governor, councillor, 
senator, representative to the general court, all county offi- 
cers, representative in congress, and electors of president 
and vice-president of the United States, and in all matters 
relating to jurors (2). — id. s. 4. 

(1) See ante, pp. 34-64. 

(2) See ante, pp. 97-101. 

5. Voters and check-list. The qualifications of voters 
in such towns shall be the same as in other towns (1), and 
check-lists (2) of voters shall be prepared and used in all 
elections there as in other towns. — id. s. 5. 

(1) See ante, pp. 47-55. 

(2) See ante, pp. 43-46. 

6. The annual meeting of the inhabitants of each ward, 
for the election of city and ward officers, shall be holden on 
such day as may be fixed by law or by ordinance of the 
city councils ; and all ward, city and town officers who are 
chosen by the people shall hold their respective offices for 
one year from the day fixed by law or ordinance, and until 
others are appointed in their stead, except where a differ- 
ent term of office is prescribed. — id. s. 6. 

7. Three selectmen, a moderator and town clerk shall 
be elected in each of said towns, who shall have the powers, 
perform the duties, and be subject to the liabilities of those 
officers in other towns, so far as relates to the warning of 
meetings, regulating, correcting and posting check-lists, 
deciding upon the qualifications of voters, conducting elec- 
tions, counting and declaring the votes, recording the same, 

26 



402 MAYORS OF CITIES. 

making returns of the votes received, and certificates of 
elections, and all other matters relating to elections. — id. 
s. 7. 

8. Polls, when opened and closed. In all elections by 
the voters in their wards, the polls shall be opened at nine 
o'clock in the forenoon of the day of election, and shall be 
kept open until three o'clock in the afternoon, and as much 
longer as the meeting shall direct ; and but one balloting 
shall be had during the day for each officer to be voted for ; 
but this section shall not apply to special elections, called 
to fill vacancies in any ward office. — id. s. 8. 

9. Plurality elects. In all elections of city and ward 
officers, the person having the highest number of votes for 
any office shall be elected ; and if a number of persons 
greater than the number to be chosen shall severally receive 
the largest and an equal number of votes, so that no choice 
is made, the ballotings shall be continued till the requisite 
number of persons shall be chosen ; but no balloting shall 
be commenced between sunset and sunrise. — id. p. 102, 
s. 9. 

10. The town clerk shall record the votes (1) and pro- 
ceedings of all ward meetings, shall enter upon the record 
the names of all persons voted for, and the number of votes 
given for each, in words at length ; and he shall deliver to 
his successor in office all records, recgrd-books, journals, 
files and papers, and other things whatever held by him in 
his capacity of clerk. — id. s. 10. 

(1) See ante, pp. 60-64. 

11. State election. All meetings of the inhabitants for 
the election of county, state or United States officers who 
are voted for by the people, shall be held in their respective 
wards at the time legally appointed (1) for those elections 
respectively. — id. s. 11. 

(1) See ante, pp. 65-74. 

12. Jurors. The selectmen and town clerk of each ward 
shall perform the same duties in relation to jurors (1) as 
are incumbent on the like officers of other towns. — id. s. 12. 

(1) See ante, pp. 97-102. 

13. Former statutes. All statutes heretofore passed ap- 
plying to particular cities, not embraced in this revision nor 



MAYORS OP CITIES. 



403 



superseded thereby, may remain in force, subject to be re- 
pealed, altered or superseded by a by-law of the cfty. — id. 
s. 13. 



CHAPTEE LXXV. 



MAYORS OF CITIES. 



Overseers of poor, s. 8. 
Plurality elects, s. 2. 
Salary of mayor, s. 11. 
Special constables, s. 6. 
Special meetings of board, s. 
Town clerk, duties of, ss. 1, 2. 
Vacancy, how filled, s. 5. 



Casting vote of mayor, s. 8. 
Choice of mayor, ss. 1, 2, 4. 
City councils, 'duties of, ss. 2-5. 
Contested election, s. 3. 
Mayor, choice of, ss. 1, 2, 4. 

Duties of, ss. 6-10. 

Salary of, s. 11. 
New election of mayor, s. 4. 

1. Choice of. The qualified voters in each ward, at the 
annual meeting for the choice of city and ward officers, 
shall give in to the moderator their votes for a N mayor of 
the city, which shall be received, sorted, counted, and de- 
clared, and a record thereof made in the same manner as 
votes for senators (1) ; and a copy of the said record, certi- 
fied by the moderator, a majority of the selectmen, and the 
town clerk, shall be delivered by said town clerk to the city 
clerk, within twenty-four hours after such meeting. — Gen. 
Sts. p. 102, c. 41. s. 1. 

(1) See ante, pp. 65-70. 

2. The city councils shall annually meet in convention, 
on the day appointed by law or ordinance for that purpose, 
and the city clerk, having entered upon the record the 
number of votes given in each ward for every person voted 
for as mayor, shall lay before the convention the returns of 
such votes, who shall examine the same, and declare the 
person who has the largest number of votes to be elected 
mayor, and cause him to be notified of his election. — id. s. 
2. 

3. In case the election of mayor is contested, the city 
councils in convention shall have power to send for persons 
and papers, may inquire into the correctness of the returns, 
and shall hear and receive evidence as to any fraud or mis- 
conduct in relation to the election ; and for that purpose 
may adjourn from time to time, not later than the time ap- 
pointed for the convention of the new city councils. — id. p. 
103, s. 3. 



404 MAYORS OF CITIES. 

4. If no person is elected MAYOR, or if the person elect- 
ed declrnes, the convention shall make a record of the fact, 
and appoint a day for another election ; and the mayor and 
aldermen shall issue their precept to the selectmen of the 
several wards, requiring them to call meetings of their 
wards on the day so appointed ; and the same proceedings 
shall be had from time to time until a mayor is chosen. — id. 
s.4. 

5. Vacancy. Whenever the office of mayor shall become 
vacant, by death, resignation, or otherwise (1), the board of 
mayor and aldermen and the common council shall respect- 
ively by vote declare the same and the cause thereof ; and 
the city councils shall thereupon meet in convention, and 
elect a mayor to fill such vacancy. — id. s. 5. 

(1) See ante p. 88, ss. 3, 4. 

6. Mayor's powers. The mayor thus chosen and quali- 
fied shall be the chief executive officer of the city, and for 
the preservation of the peace shall have the powers of sher- 
iff and conservator of the peace, and, in case of any 
unlawful assembly, may appoint (1) so many special con- 
stables as he may think expedient, giving to each such badge 
of office as the city councils have appointed or he shall ap- 
point. — id. s. 6. 

(1) See ante, p. 395, s. 9 (1). 

7. His duties. He shall cause the laws and regulations 
of the city to be executed, and shall exercise a general su- 
pervision over the conduct of all subordinate officers, and 
cause their violation or neglect of duty to be punished. — id. 
s.7. 

8. He shall preside in the board of aldermen, and in 
convention of the city councils, but shall have a casting 
vote only, and shall be ex officio chairman of the board of 
overseers of the poor. — id. s. 8. 

9. He may call special meetings of the board of alder- 
men and common council, or either of them, when in his 
opinion the interests of the city require it, by causing a no- 
tification to be given to each member of the board to be 
convened, or left at his abode. — s. 9. 

10. Communications from. He shall from time to time 
communicate to the city councils respectively such informa- 



MAYOR AND ALDERMEN AND COMMON COUNCIL. 



405 



tion and recommend such measures as the interests of the 
city shall in his judgment require. — id. s. 10. 

11. Salary. He shall receive for his services such salary 
as the city councils shall determine, payable at stated peri- 
ods, and shall receive no other compensation ; and such 
salary shall not be increased or diminished from the time 
of any election till the close of the term of the mayor then 
elected. — id. s. 11. 



CHAPTER LXXVI 



MAYOR AND ALDERMEN AND COMMON COUNCIL. 



Annual, convention, ss. 3, 4, 5. 
Annual ward meetings, s. 1. 

Adjournment of, s. 1. 
Certificate of election, s. 2. 
City clerk is clerk of mayor, etc., s. 6. 
City marshal and assistants, s. 15. 
Common council, board of, 

Compensation of council, s. 13. 

Contested elections, s. 11. 

Clerk of the board, s. 9. 

Election of councilmen, ss. 1, 11. 

Moderator of council, s. 8. 

Official oath, a record of, ss. 3-5. 

Quorum, majority is, s. 10. 

Rules of proceeding, s. 12. 
Collector of taxes, appointment of, is. 

15. 
Constables, police and watchmen, s. 15. 
Contested elections, s. 11. 
Executive powers, in whom vested, s.14. 
General meetings, calling of, s. 17. 
Joint rules of proceedings, s. 12. 
Journal of mayor and aldermen, ss. 4, 5. 
Mayor and aldermen, board of, s. 6. 

Authority of selectmen, vested, s. 14. 

Chairman of the board, s. 6. 



Compensation to, denied, s. 13. 

Clerk of the board, s. 6. 

Contested elections, s. 11. 

Election of aldermen, s. 1. 

Executive powers of board, s. 14. 

General powers of board, ss. 14-17. 

Official oath to, record of, ss. 3-5. 

Quorum, majority is, s. 10. 

Rules of proceedings, s. 12. 
Meetings of each board to be public, s. 10. 
Moderator to sign certificate of election, 

s.2. 
Official bonds and oath, ss. 3, 4, 15. 
Office, who disqualined to hold, e. 13. 
Organization of city government, s. 3. 
New election, when ordered, s. 11. 
Quorum, a majority is, s. 10. 
Rules of proceedings of each board, s. 

12. 
Selectmen to sign certificate, s. 2. 
Shade trees may be set out, s. 16. 
Town clerk, duties of, ss. 2, 4. 
Vacancies, how filled, s. 11. 
Wards, annual meetings in, s. 11. 
Warrant for ward meetings, s. 17. 
Yeas and nays, entry of, s. 10. 



1. Choice of. There shall be chosen in each ward, at 
the annual meeting thereof, by ballot and by plurality of 
votes, so many aldermen and common councilmen as shall 
be authorized by law or ordinance. If the choice of alder- 
men, common councilmen and town officers cannot be 
conveniently completed on that day, the meeting may be 
adjourned from day to day to complete the choice. — Gen. 
Sts. p. 104, c. 42, s. 1. 

2. Certificate of election. The clerk shall, within 
twenty-four hours after such choice, deliver to each person 
chosen alderman or common councilman a certified copy of 



406 MAYOR AND ALDERMEN AND COMMON COUNCIL. 

the record of his election (1), signed by himself, the mod- 
erator, and a majority of the selectmen. — id. s. 2. 

(1) See ante, p. 65, s. 3. 

3. Annual convention. The mayor, aldermen and 
common council shall annually meet in convention (1) , on 
such day as shall be appointed by law or ordinance, at ten 
o'clock in the forenoon, when the oath of office may be 
administered to the mayor elect, if present, by any judge 
or justice of the peace, and to the aldermen and common- 
councilmen by the mayor or any justice of the peace. — id. 
s. 3. 

(1) See Digest, p. 149. 

4. Oath op office. A record (1) that such oaths have 
been so taken shall be made in the journal of the mayor 
and aldermen and of the common council, by their re- 
spective clerks. — id. s. 4. 

(1) See ante, p. 79, s. 16. 

5. If from any cause the mayor or any of the aldermen 
or common councilmen are not then sworn, the oath may 
be administered to them at any time thereafter, a record 
thereof being -made on the journal of their board. — id. s. 
5. 

6. The mayor and aldermen shall compose one board, 
and shall sit and act together as one body, at all meetings 
of which the mayor, if present, shall preside ; but in his 
absence a chairman shall be chosen. The city clerk shall 
be clerk of the board. — id. s. 6. 

7. Common council, board of. The persons chosen and 
qualified as members of the common council shall sit and 
act together as one board, distinct from the mayor and 
aldermen, except when the two bodies are required to act 
in convention. — id. s. 7. 

8. Moderator of. The common council shall from time 
to time choose one of their members to preside at all meet- 
ings of the board, who shall have, for the preservation of 
order, the powers of a moderator in town meeting. — id. s. 
8. 

9. Clerk of. They shall choose a clerk, who shall hold 
his office during their pleasure, shall attend their sessions, 
and keep a record of their acts, doings and proceedings, 



MAYOR AND ALDERMEN AND COMMON COUNCIL. 407 

and perform such other services in his office as the said 
council shall require. — id. s. 9. 

10. Quorum. A majority of each branch of the city coun- 
cils shall be a quorum for the transaction of business ; 
their meetings shall be public, and on motion of any mem- 
ber the yeas and nays on any question shall be taken and 
entered upon the journal. — id. s. 10. 

11. Each branch shall be the final judges of the elec- 
tion and qualification of its members, and if any election 
is contested, shall have the same powers to ascertain the 
facts as the city convention have in regard to the election 
of mayor ; and in case of a vacancy in their branch may 
order a new election. — id. s. 11. 

12. May make rules. Each branch may make, alter or 
repeal rules for the orderly transaction of its business ; 
and the two branches, by concurrent vote, may make and 
alter joint rules for the transaction of the business of the 
two branches. — id. p. 105, s. 12. 

13. No pay. No member of either branch, except the 
mayor, shall receive any compensation for his services, or 
shall hold any office or agency created during his continu- 
ance in office. — id. s. 13. 

14. Mayor and aldermen, powers of. The executive 
powers of the city and the administration of police, ex- 
cept where vested in the mayor, shall be exercised by the 
mayor and aldermen ; and they shall have the powers 
and do and perform all the duties which the selectmen of 
towns have, are authorized or required to do and perform 
in regard to their towns, unless it is otherwise provided 
by law. — id. s. 14. 

15. To appoint officers. They shall appoint a city 
marshal (1), and one or more assistant marshals if they 
think it necessary, a collector of taxes, constables, police 
officers and watchmen, and remove them from office for 
sufficient cause ; and may require the marshal and consta- 
bles, before entering on their duties, to give bonds, with 
sufficient sureties to any reasonable amount, upon which 
like proceedings and remedies may be had as in case of 
bonds required to be given by constables of towns. — id. s. 15. 

(1) Tenure of office of, see Digest, p. 149, s. 7. 

16. To set out shade trees. The mayor and aldermen 



408 



CITY CLERK AND OTHER CITY OFFICERS. 



may set out and maintain shade trees and shrubbery on 
public squares and highways (1), to the amount annually 
appropriated by the city councils. — id. s. 16. 

(1) See ante, p. 8, s. 3. 

17. General meetings, calling of. The mayor and al- 
dermen shall issue their warrant for a general meeting of 
the inhabitants, for any constitutional or legal purpose, 
whenever requested to do so, in writing (1), by one hun- 
dred legal voters. — id. s. 17. 

(1) See ante, p. 38, s. 17. 



CHAPTEK LXXVII 



CITY CLERK AND OTHER CITY OFFICERS. 



Assessments to be recorded, p. 4. 
Assessors, choice of and duties, sa. 9-12. 

Assistant assessors, s. 11. 
City clerk, choice of and duties, ss. 1, 
3, 4, 13. 

Tenure of office, s. 1. 

Vacancy in office, s. 6. 
City clerk, pro tem., ss. 5, 6. 
City marshal, duties of, ss. 7, 8. 



Collector, authority of, s. 8. 
Constables, authority of, s. 8. 
Custody of records, s. 13. 
Police officers, authority of, s. 8. 
Records and papers, custody of, s. 13. 
School-district taxes, s. 12. 
Vacancy in office of clerk, s. 6. 
Watchmen, authority of, s. 8. 
Warrant for taxes, s. 12. 



1. Clerk, how elected. The city councils being met in 
convention, upon the day appointed by law or ordinance, 
shall by joint ballot elect a city clerk (1), who shall hold 
his office for one year, and until another is chosen and qual- 
ified ; removable, however, at the pleasure of the city coun- 
cils. — Gen. Sts. p. 105, c. 43, s. 1. 

(1) See Digest, p. 149, ss. 1-4. 

2. His duties. The city clerk shall be ex officio clerk of 
the board of mayor and aldermen , shall keep a journal of 
all the acts, votes, and proceedings of the mayor and alder- 
men, and also of the city councils when sitting in conven- 
tion, and shall perform such other services as the mayor 
and aldermen or city councils may prescribe. — id. p. 106, 
s. 2. 

3. He shall perform all the duties and exercise all the 
powers incumbent upon or vested in the town clerks of 
towns (1), except where it is otherwise provided by law. 
He shall deliver to his successor in office, as soon as chosen 



CITY CLERK AND OTHER CITY OFFICERS. 409 

and qualified, all journals, records, record books, papers, 
files and other things whatsoever held by him in his ca- 
pacity of city clerk. — id. s. 3. 

(1) See ante, pp. 83-86. 

4. To receive assessments. The city clerk shall receive 
the invoice and assessments (1) annually made, or a copy 
thereof required by law to be returned to his office, and 
keep the same there, open to public inspection, but shall 
not record the same. — id. s. 4. 

(1) See ante, p. 177, 8. 23. 

5. Clerk pro tem. Whenever the city clerk shall become 
unable, by reason of sickness or otherwise, to discharge his 
duties, the mayor and aldermen may appoint a clerk pro 
tempore, who shall perform all the duties of clerk during 
such time as said incapacity may continue. — id. s. 5. 

6. Vacancy. In case the office of city clerk shall become 
vacant (1) from any cause, the mayor and aldermen shall 
forthwith appoint (2) a clerk pro tempore, who shall hold 
the office and perform the duties until a clerk shall be 
elected by the city councils, at a convention which may be 
held at any time for that purpose. — id. s. 6. 

(1) See ante, p. 88, ss. 3, 4. 

(2) See ante, p. 90, s. 12. 

7. The city marshal shall, under the mayor, have the 
control and direction of the police of the city ; shall attend 
upon the mayor and aldermen when required ; shall be, by 
virtue of his office, constable and conservator of the peace ; 
and in the absence or disability of the mayor shall have the 
same powers for the preservation of the peace as the may- 
or. — id. s. 7. 

8. The authority of the marshal, assistant marshals, 
collector, constables, police officers and watchmen shall ex- 
tend through any ward, and to every part of the city. — id. 
s. 8. 

9. So many assessors may be annually chosen in each 
ward as may be prescribed by law or ordinance ; or so many 
assessors may be chosen, in such manner and for such 
terms, as may be prescribed by law, or as the city councils 
may by ordinance provide, who shall hold their offices for 
the terms therein limited. — id. s. 9. 



410 CITY CLERK AND OTHER CITY OFFICERS. 

10.' The assessors, however elected, shall constitute a 
board of assessors for the city, who shall perform all the 
duties, relative to taking the inventory and the appraisal of 
property for taxation, and in regard to the assessment and 
abatement of taxes, and issuing warrants for the collection 
of the same, as are now or may hereafter be required by 
law of selectmen (1) and assessors of towns ; and shall 
have all the powers and be subject to the same liabilities, in 
regard to those duties, which selectmen and assessors in 
towns now or hereafter may have or be subject to in regard 
to the same. — id. s. 10. 

(1) See ante, pp. 161-208. 

11. Assistant assessors. The city council of any city 
may elect assistant assessors, not exceeding six in number, 
who shall assist the assessors of such city in the discharge 
of their official duties, when necessary for the seasonable 
completion of the inventory and assessment ; and the assis- 
tant assessors shall act under the direction of the assessors, 
—id. s. 11. 

12. Warrant for taxes. The mayor and aldermen shall 
forthwith deliver to the chairman of the board of assessors 
all warrants for the assessment of state and county taxes 
which may be addressed to them, and all certified copies of 
the votes of school districts for raising district taxes which 
may be delivered to them (1) ; and the same shall be suffi- 
cient authority for the assessors to assess and collect such 
taxes. — id. p. 147, s. 12. 

(1) See ante, pp. 294, 299. 

13. Records and books, custody of, etc. All records, 
books, papers, vouchers, and documents of every kind, 
which shall be in the hands of any officer, committee, or board 
of officers of the city, not their individual property, which 
shall not be needed for their present use, shall be properly 
filed (1) and deposited in the office of the city clerk, and 
shall be kept and preserved there by him as public records 
of the city. — id. s. 13. 

(1) See ante, p. 85, s, 44. 



POWERS OP CITY COUNCILS. 



411 



CHAPTER LXXVIII 



POWERS OF CITY COUNCILS. 



Account ability of officers, s. 6. 

Appeal from police court, s. 14. 

Assessors, choice of, s. 4. 

Bathing and swimming, s. 11, xn, 

Beggars and vagrants, s. 11, xn. 

Board of health, s. 10. 

Buildings, erection of regulated, s. 11, 

XIII. 

By-laws and ordinances, s. 11. 

Not repugnant to statutes, s. 11, xin. 

To be published, s. 12. 
Cemeteries and burials, s. 11,'xrv. 
City property, charge of, s. 5. 
City treasurer, s. 3. 
Complaint, requisites of, s. 15. 
Concurrent vote, s. 1. 
Disorderly houses, s. 11. in. 
Disqualification for office, s. 2. 
Dogs, by-laws relating to, s. 11, x. 
Drains and sewers, s. 9. 
Gunpowder, keeping and sale of, s. 11, 

VIII. 

Health officers, s. 10. 

Horses and cattle, by-laws for, s. 11, ix. 

Junk dealers and pawnbrokers, s. 11, 

XIV. , 

Land damages, assessment of, s. 9. 
Markets, by-laws for, s. 11, xi. 
Military companies, s. 11, xiv. 



Necessary officers provided for, s. 2. 
Nuisances, by-laws relating to, s. 11, 

XIII. 

Official oaths and bonds, by-laws for, 

s. 11, xiv. 
Officers, annually chosen, s. 3. 
Overseers of the poor, choice of, s. 4. 
Peddlers and hawkers, by-laws for, 8. 

11, xiv. 
Penalties, how recovered, s. 13. 
Police court, jurisdiction of, s. 13. 

Appeal from, s. 14. 
Police of city, by-laws for, s. 11, n. 
Public streets, by-laws for, s. 11, vn. 
Public squares, by-laws for, ss. 5, 7, vn. 
Purchase and sale of property for city, 

s. 5. 
Sale of city property, s. 5. 
Sale of spirit, by-laws relating to, 

11, IV. 
School committee, choice of, s. 4. 
Shade trees protected, s. 11, xiv. 
Streets and sidewalks, by-laws for 

11, xiv. 
Towns, cities have powers of, s. 1. 
Vacancies to be filled, s. 4. 
Wards, division of city into, s. 8. 
Yearly account of expenses, s. 7. 



8. 



B. 



1. Authokity of town. All the powers vested by law in 
towns, or in the inhabitants thereof, shall be exercised by 
the city councils by concurrent vote, each board having* a 
negative on the other. — Gen. Sts. p. 107, c 44, s. 1. 

2. Necessary officers may be provided for. The city 
councils shall have power to provide for the appointment 
or election of all necessary officers for the good govern- 
ment of the city not otherwise provided for, and to pre- 
scribe their duties and fix their compensation ; but no per- 
son shall be elected by the city councils, or appointed by 
the mayor and aldermen to any office of profit, who at the 
time of such election or appointment is a member of the 
board of aldermen or common council. — id. s. 2. 

3. City treasurer. The city councils shall annually, at 
the times fixed by ordinance for that purpose, meet in con- 
vention (1), and by joint ballot elect a city treasurer and 
all other subordinate officers who are not chosen in the 
ward meetings, appointed by the mayor and aldermen, or 
otherwise appointed by law; and all such officers shall 



412 POWERS OF CITY COUNCILS. 

hold their respective offices until others are elected or ap- 
pointed and qualified in their stead. — id. s. 3. 

(1) See Digest, p. 149. 

4. Vacancies. At a like convention held by request of 
either branch of the city councils, they shall fill all vacan- 
cies that shall exist in the boards of assessors, overseers of 
the poor, or school committee, until an election shall be 
had, and all vacancies in any office to which they have the 
power to elect. — id. s. 4. 

5. City property, charge of. The city councils shall 
have the care and superintendence of the city buildings, 
all city property, and all public squares and streets ; and 
the power to sell or let what may be legally so disposed of, 
and to purchase property, real or personal, for the use of 
the city, whenever the interests or convenience of the city 
shall require it. — id. s. 5. 

6. Accountability for money. The city councils shall 
take proper care that no money be paid from the city treas- 
ury, unless previously granted and appropriated, and shall 
secure a just and prompt accountability from all persons 
entrusted with the receipt, custody or disbursement of the 
money or funds of the city, or the care of its property. — 
id. s. 6. 

7. Yearly account, published. The city councils shall, 
once in every year at least, publish, for the use and infor- 
mation of the inhabitants, a particular account of the re- 
ceipts and expenditures of the city, and a schedule of its 
debts and property. — id. s. 7. 

8. Wards, division of city into. The city councils may 
from time to time revise and change the division of the 
city into wards, alter their boundaries, and increase or di- 
minish the number thereof, whenever they deem the public 
interests to require the same ; but no such alteration shall 
be made by a vote of less than two thirds of the members 
of each board ; and no such alteration shall be made where- 
by the number of representatives in the general court shall 
be increased. — id. s. 8. 

9. Drains and sewers. The city councils shall have pow- 
er to construct drains and common sewers through high- 
ways, streets, or private lands, paying the owners such 
damages as they shall sustain thereby, such damages to be 



POWERS OP CITY COUNCILS. 413 

assessed by the mayor and aldermen, in the same manner 
and with the same right of appeal from their decision as in 
case of the laying out of highways (1), and may require 
all persons to pay a reasonable sum .for the right to open any 
drain into any public drain or common sewer. — id. s. 9. 

(1) See ante, pp. 215-225. 

10. Board op health. All the powers vested in the 
board of health (1) of towns shall be vested in the city 
councils, and shall be carried into execution in such man- 
ner, by such officers, and with such powers as the city 
councils shall determine. — id. s. 10. 

(1) See ante, pp.385, 388. 

11. By-laws and ordinances. The city councils shall 
have power to make all such salutary and needful by-laws (1) 
as towns and the police officers of towns, and engineers or 
firewards, by law have power to make, and to annex penal- 
ties, not exceeding twenty dollars, for the breach thereof; 
and may make, establish, publish, alter, modify, amend and 
repeal ordinances, rules, regulations and by-laws for the 
following purposes: 

(1) See ante, p. 10, s. 8. 

I. To carry into effect all the powers by law vested in the 
city. 

II. To regulate the police of the city ; to prevent any riot, 
noise, disturbance, or disorderly assemblages ; to regulate 
the ringing of bells, blowing of horns or bugles, and crying 
goods or other things ; and to prescribe the powers and du- 
ties of police officers and watchmen. 

in. To suppress and restrain disorderly houses, and houses 
of ill-fame, gambling houses and places, billiard tables, nine 
or ten pin alleys or tables, and ball alleys, and all playing 
of cards, dice, or other games of chance ; to restrain and 
prohibit all descriptions of gaming and fraudulent devices ; 
and to authorize the destruction and demolition of all in- 
struments and devices used for the purpose of gaming. 

IV. To prohibit or regulate the manufacture, sale, or giving 
away of any spiritous or intoxicating liquor, to establish reg- 
ulations for groceries, stores, restaurants, places of public 



414 POWERS OF CITY COUNCILS, 

amusement, and other places where such spiritous or intox- 
icating liquors may be sold ; to authorize the entry of 
proper officers into all such places to inspect the same, and 
the seizure and forfeiture of all such liquors, and the in- 
struments used or designed to be used in the manufacture 
or sale of the same. 

V. To regulate or prohibit the exhibitions of common show- 
men, and shows of every hind, and the exhibition of any 
natural or artificial curiosities, caravans, circuses, or theat- 
rical performances. 

VI. To license and regulate porters, cartmen and cartage, 
runners for boats, stages, cars and public houses, hackney 
coaches, cabs and carriages, and their drivers ; the care and 
conduct of all animals, carriages and teams, standing or 
moving in the streets ; to prevent horse-racing and immod- 
erate riding or driving in streets and on bridges, and pre- 
vent cruelty to animals. 

vii. To regulate all streets and public ways, wharves, 
docks and squares, and the use thereof, and the placing or 
leaving therein any carriages, sleds, boxes, lumber, wood, 
or any articles or materials, and the deposit of any waste 
or other thing whatever ; the removal of any manure or 
other material therefrom ; the erection of posts, signs, 
steps or awnings ; the digging up the ground, or any other 
act by which the public travel may be incommoded ; the 
securing by railings or otherwise any well, cellar, or other 
dangerous place in or near the line of any street ; to pro- 
hibit the rolling of hoops, playing at ball, or flying kites, 
or any other amusement or practice, having a tendency to 
annoy persons passing in the streets and sidewalks, or to 
frighten teams and horses within the same ; and to compel 
persons to keep the snow, ice and dirt from the sidewalks 
in front of the premises owned or occupied by them. 

viii. To regulate the keeping, conveying, and places of 
deposit of gunpowder and other combustible and dangerous 
materials ; the use of candles, lights, and matches in barns, 
stables and other buildings containing combustible and 
dangerous materials ; to regulate the erection or use of 
buildings within the most compact part of the city, for any 
purpose which in the opinion of the city councils shall 
more immediately expose said city to destruction by fire, 
and to define the limits of such compact part. 



POWERS OP CITY COUNCILS. 415 

IX. To restrain and regulate the running at large of 
horses, cattle, sheep, swine, goats and geese, and to author- 
ize distraining, impounding and sale of the same, for the 
penalty incurred and costs of the proceedings. 

x. To regulate the keeping of dogs and their running at 
large, impose a tax upon them, require them to be licensed, 
and authorize the destruction of those kept or running at 
large contrary to the ordinance. 

xi. To establish markets and market places ; regulate the 
place and manner of selling and weighing hay, selling 
pickled and other fish, and salted and fresh provisions ; 
selling and measuring wood, lime, coal, and other heavy 
articles ; and to appoint suitable persons to superintend 
and conduct the same ; to prevent and punish forestalling 
and regrating; and to restrain every kind of fraudulent 
device and practice. 

xii. To restrain and punish vagrants, mendicants, street 
beggars, strolling musicians, and common prostitutes, and 
all kinds of immoral and obscene conduct ; and to regulate 
the times and places of bathing and swimming in the 
canals, rivers and other waters of the city. 

xiii. To abate and remove nuisances ; to regulate the 
location and construction of slaughter-houses, tallow-chan- 
dlers' shops, soap factories, tanneries, stables, barns, privies, 
sewers, and other unwholesome or nauseous buildings or 
places, and the abatement, removal or purification of the 
same by the owner or occupant ; to prohibit any person 
from bringing, depositing, or having within the city any 
dead carcass or other unwholesome substance ; to provide 
for the removal or destruction, by any person who shall 
have the same upon or near his premises, of any such sub- 
stance, or any putrid or unsound beef, pork, fish, hides or 
skins, and, on his default, to authorize the removal or de- 
struction thereof by some officer of the city. 

xiv. Relative to the grade of streets and the grade and 
width of sidewalks ; to the laying out and regulating public 
squares and walks, commons and other public grounds, 
public lights and lamps ; to trees planted for shade, orna- 
ment, convenience, or use, and the fruit of the same ; to 
trespasses committed on public buildings, and other public 
property, and in private yards and gardens ; in relation to 
cemeteries, public burial grounds, the burial of the dead, 



416 POWERS 4 OF CITY COUNCILS. 

and the returning and keeping records thereof, and bills of 
mortality, and the duties of physicians, sextons and others 
in relation thereto ; relative to public wells, cisterns, pumps, 
conduits and reservoirs ; the places of military parade and 
rendezvous, and the marching of military companies with 
music in the streets of the city ; relative to precautions 
against fire ; relative to oaths and bonds of city officers, 
and penalties upon those elected to such offices refusing to 
serve ; and relative to licensing and regulating butchers, 
petty grocers or hucksters, peddlers, hawkers and common 
victualers ; dealers in and keepers of shops for the pur- 
chase, sale or barter of junk, old metals, or second-hand 
articles, and pawnbrokers ; under such limitations and re- 
strictions as to them shall appear necessary. 

They may make any other by-laws and regulations which 
may seem for the well being of said city ; but no by-law or 
ordinance shall be repugnant to the constitution or laws of 
the state ; and such by-laws and ordinances shall take effect 
and be in force from the time therein limited, without the 
sanction or confirmation of any other authority whatever, 
id. p. 110, s. 11. 

12. All city by-laws and ordinances shall be duly 
published and in such newspaper or newspapers as the city 
councils shall direct. — id. s. 12. 

13. Penalties. All fines and forfeitures, for the viola- 
tion of any by-law or ordinance of a city, shall be recov- 
ered by complaint before the police court of said city, and 
shall enure to such uses as the city councils may direct, 
id. s. 13. 

14. Appeal. Any party so prosecuted shall have the 
right to appeal to the supreme court in the same manner 
and on the same terms and conditions as are provided by 
law for appeals from the judgments of justices of the peace 
in other criminal prosecutions. — id. p. Ill, s. 14. 

15. Complaint, requisites op. It shall be sufficient in 
any such complaint to set out the offence plainly and sub- 
stantially ; but the by-law or ordinance upon which the com- 
plaint is founded need not be recited or set out. — id. s. 15. 



ERRATA 



1. P. 65, 12th line from bottom, for " votes given in," read tickets given in. 

2. P. 239, s. 78, for sod read soil. 

' 3. Tax tables. It may be found convenient to carry tbe table given upon p. 178, 
ante, to 100, as in table A, here given. Tbe right hand column in this table is most 
conveniently formed by continued additions of the tax upon one cent, as herein, but 
in practice this may well be upon a separate paper. 

Joseph E. Bennett, Esq., the very competent city clerk of Manchester, has also 
found it useful to construct a table constantly increasing by Jive cents, as in table B. 
This table can be carried to any extent desired. The one used by Mr. Bennett reaches 
$17.00. In table B the tax upon $1.10, $1.20, and so on, of any number divisible by 
ten, up to $10.00, will be a transcript of the 10-cent column in table A, commencing 
with 11. The others are obtained by continued additions of the tax upon 10 cents. 

Tables A and B upon pp. 418-423. 
27 



418 



TAX TABLE A. 
TAX TABLE A. 

TWO CENTS AND FOUR MILLS ON ONE CENT. 





$1000 


$100 


$10 


$1.00 


Cents 
10 


Cents 
1 




1 


2,400 


240 


24 


2.40 


.24 


.024 




2 


4,800 


480 


48 


4.80 


.48 


.048 




3 


7,200 


720 


72 


7.20 


.72 


.072 




4 


9,600 


960 


96 


9.60 


.96 


.096 




5 


12,000 


1,200 


120 


12.00 


1.20 


.120 




6 


14,400 


1,440 


144 


14.40 


1.44 


.144 




7 


16,800 


1,680 


168 


16.80 


1.68 


.168 




8 


19,200 


1,920 


192 


19.20 


1.92 


.192 




9 


21,600 


2,160 


216 


21.60 


2.16 


.216 


.24 

24 


10 


24,000 


2,400 


240 


24.00 


2.40 


.240 


11 






264 


26.40 


2.64 


.264 


.264 
24 


12 






288 


28.80 


2.88 


.288 


.288 
24 


13 






312 


31.20 


3.12 


.312 


.312 
24 


14 






336 


33.60 


3.36 


.336 


336 

24 


15 






360 


36.00 


3.60 


.360 


360 
24 


16 






384 


38.40 


3.84 


.384 


.384 
24 


17 






408 


40.80 


4.08 


.408 


.408 
24 


18 






432 


43.20 


4.32 


.432 


.432 
24 


19 






456 


45.60 


4.56 


.456 


.456 
24* 


20 






480 


48.00 


4.80 


.480 


.480 
24 


21 






504 


50.40 


5.04 


.504 


.504 
24 


22 






528 


52.80 


5.28 


.528 


.528 
24 


23 






552 


55.20 


5.52 


.552 


.552 
24 


24 






576 


57.60 


5.76 


.576 


.576 
24 


25 






600 


60.00 


6.00 


.600 


.600 



TAX TABLE A. 
TAX TABLE A — continued. 



41£ 





$1000 


$100 


$10 


$1.00 


Cents 
10 


Cents 

1 




26 






624 


62.40 


6.24 


.624 


.624 
24 


27 






648 


64.80 


6.48 


.648 


.648 
24 


28 






672 


67.20 


6.72 


.672 


.672 
24 


29 






696 


69.60 


6.96 


.696 


.696 
24 


30 






720 


72.00 


7.20 


.720 


.720 
24 


31 






740 


74.40 


7.44 


.744 


.744 
24 


32 






768 


76.80 


7.68 


.768 


.768 
24 


33 






792 


79.20 


7.92 


.792 


.792 
24 


34 






816 


81.60 


8.16* 


.816 


.816 
24 


35 






840 


84.00 


8.40 


.840 


.840 
24 


36 






864 


86.40 


8.64 


.864 


.864 
24 


37 






888 


88.80 


8.88 


.888 


.888 
24 


3S 






912 


91.20 


9.12 


.912 


.912 
24 


39 






936 


93.60 


9.36 


.936 


.936 
24 


40 






960 


96.00 


9.60 


.960 


.960 
24 


41 






984 


98.40 


9.84 


■ .984 


.984 
24 


42 






1,008 


100.80 


10.08 


1.008 


1.008 
24 


43 






1,032 


103.20 


10.32 


1.032 


1.032 
24 


44 






1,056 


105.60 


10.56 


1.056 


1.056 
24 


45 






1,080 


108.00 


10.80 


1.080 


1.080 
24 


46 






1,104 


110.40 


11.04 


1.104 


1.104 
24 


47 






1,128 


112.80 


11.28 


1.128 


1.128 

24 



420 



TAX TABLE A. 
TAX TABLE A — continued. 





$1000 


$100 


$10 


$1.00 


Cents 
10 


Cents 
1 




48 






1,152 


115.20 


11.52 


1.152 


1.152 
24 


49 






1,176 


117.60 


11.76 


1.176 


1.176 

24 


50 






1,200 


120.00 


12.00 


1.200 


1.200 
24 


51 






1,224 


122.40 


12.24 


1.224 


1.224 
24 


52 






1,248 


124.80 


12.48 


1.248 


1.248 
24 


53 






1,272 


127.20 


12.72 


1.272 


1.272 

24 


54 






1,296 


129.60 


12.96 


1.296 


1.296 
24 


55 






1,320 


132.00 


13.20 


1.320 


1.320 
24 


56 




- 


1,344 


134.40 


13.44 


1.344 


1.344 
24 


57 






1,368 


136.80 


13.68 


1.368 


1.368 
24 


58 






1,392 


139.20 


13.92 


1.392 


1.392 
24 


59 






1,416 


141.60 


14.16 


1.416 


1.416 
24 


60 






1,440 


144.00 


14.40 


1.440 


1.440 
24 


61 






1,464 


146.40 


14.64 


1.464 


1.464 
24 


62 






1,488 


148.80 


14.88 


1.488 


1.438 
24 


63 






1,512 


151.20 


15.12 


1.512 


1.512 
24 


64 






1,536 


153.60 


15.36 


1.536 


1.536 
24 


65 






1,560 


156.00 


15.60 


1.560 


1.560 
24 


66 






1,584 


158.40 


15.84 


1.584 


1.584 
24 


67 






1,608 


160.80 


16.08 


1.608 


1.608 
24 


68 






1,632 


163.20 


16.32 


1.632 


1.632 
24 


69 






1,656 


165.60 


16.56 


1.656 


1.656 



24 



TAX TABLE A. 
TAX TABLE A — continued. 



421 





$1000 


$100 


$10 


$1.00 


Cents 
10 


Cents 
1 




70 






1,680 


168.00 


16.80 


1.680 


1.680 
24 


71 






1,704 


170.40 


17.04 


1.704 


1.704 
24 


72 






1,728 


172.80 


17.28 


1.728 


1.728 
24 


73 






1,752 


175.20 


17.52 


1.752 


1.752 
24 


74 






1,776 


177.60 


17.76 


1.776 


1.776 
24 


75 






1,800 


180.00 


18.00 


1.800 


1.800 
24 


76 






1,824 


182.40 


18.24 


1.824 


1.824 
24 


77 






1,848 


184.80 


18.48 


1.848 


1.848 
24 


78 






1,872 


187.20 


18.72 


1.872 


1.872 
24 


79 






1,896 


189.60 


18.96 


1.896 


1.896 
24 


80 






1,920 


192.20 


19.20 


1.920 


1.920 
24 


81 






1,944 


194.40 


19.44 


1.944 


1.944 
24 


82 






1,968 


196.80 


19.68 


1.968 


1.968 
24 


83 






1,992 


199.20 


19.92 


1.992 


1.992 
24 


84 






2,016 


201.60 


20.16 


2.016 


2.016 
24 


85 






2,040 


204.00 


20.40 


2.040 


2.040 

24 


86 






2,064 


206.40 


20.64 


2.064 


2.064 
24 


87 






2,088 


208.80 


20.88 


2.088 


2.088 
23 


88 






2,112 


211.20 


21.12 


2.112 


2.112 
24 


89 






2,136 


213.60 


21.36 


2.136 


2.136 
24 


90 






2,160 


216.00 


21.60 


2.160 


2.160 
24 


91 






2,184 


218.40 


21.84 


2.184 


2.184 

24 



422 



TAX TABLE A. 
TAX TABLE A— concluded. 





$1000 


$100 


$10 


$1.00 


Cents 
10 


Cents 
1 




92 






2,208 


220.80 


22.08 


2.208 


2.208 
24 


93 






2,232 


223.20 


22.32 


2.232 


2.232 
24 


94 






2,256 


225.60 


22.56 


2.256 


2.256 
24 


95 






2,280 


282.00 


22.80 


2.280 


2.280 
24 


96 






2,304 


230.40 


23.04 


2.304 


2.304 
24 


97 






2,328 


232.80 


23.28 


2.328 


2.328 
24 


98 






2,352 


235.20 


23.52 


2.352 


2.352 
24 


99 






2,376 


237.60 


23.76 


2.376 


2.376 
24 


100 






2,400 


240.00 


24.00 


2.400 


2.400 



TAX TABLE B. 
TAX TABLE B 



423 



R. V.* 


Tax. 


R.V. 


Tax. 


R.V. 


Tax. 


R.V. 


Tax. 


R.V. 


Tax. 


R.V. 


Tax- 


$1.05 




$2.75 




$4.50 




6.20 




7.90 




$9.60 




10 


$2.64 


80 


$6.72 


55 




25 




95 




65 




15 




85 




60 




30 




8.00 




70 




20 


2.88 


90 


6.96 


65 




35 




5 




75 




25 




95 




70 




40 




10 




80 




30 


3.12 


3.00 


7.20 


75 




45 




15 




85 




35 




5 




80 




50 




20 




90 




40 


3.36 


10 


7.44 


85 




55 




25 




95 




45 




15 




90 




60 




30 




10.00 




50 


3.60 


20 


7.68 


95 




65 




35 








55 




25 




5.00 




70 




40 








60 


3.84 


30 


7.92 


5 




75 




45 








65 




35 




10 




80 




50 








70 


4.08 


40 


8.16 


15 




85 




55 








75 




45 




20 




90 




60 








80 


4.32 


50 


8.40 


25 




95 




65 








85 




55 




30 




7.00 




70 








90 


4.56 


60 


8.64 


35 




5 




75 








95 




65 




40 




10 




80 








2.00 


4.80 


70 


8.88 


45 




15 




85 








5 




75 




50 




20 




90 








10 


5.04 


80 


9.12 


55 




25 




95 








15 




85 




60 




30 




9.00 








20 


5.28 


90 


9.36 


65 




35 




5 








25 




95 




70 




40 




10 








30 


5.52 


4.00 


9.60 


75 




45 




15 








35 




5 




80 




50 




20 








40 


5.76 


10 


9.84 


85 




55 




25 








45 




15 




90 




60 




30 








50 


6.00 


20 


10.08 


95 




65 




35 








55 




25 




6.00 




70 




40 








60 


6.24 


30 


10.32 


5 




75 




45 








65 




35 




10 




80 




50 








70 


6.48 


40 


10.56 


15 




85 




55 








*Re 


luced v 


aluatio 


n. 



















INDEX 



Aqueducts, p. 269, ss. 32, 33. 
Adverse possession, title by, p. 31, s. 
7(b). 

Not of highways, p. 263. . 

Not of public ground, p. 263. 
Agents of towns, choice of, and duties, 
pp. 75, 240. 

Of school districts, p. 281. • 

Aid, officers may require, p. 396, s. 18. 
APPOINTMENTS AND REMOVALS, 
p. 87. 

Form of appointment, p. 90, s. 12. 

Form of removal, pp. 89, 90, s. 9. 
Apprentices and masters, pp. 315-320. 
Arrest by collectors, p. 188. 

By highway surveyor, p. 243, s. 11 (1). 

Without warrant, pp. 395, 396, ss. 
13-18. 
Attachments and liens, p. 84, s. 41. 
Bakers, sales by, p. 152, ss. 23, 24. 
Ballot, officers chosen by, p. 76, s. 1. 
Bathing in exposed places, p. 391, s. 6, 

p. 410. 
Beef, weighing and selling, p. 148. 
Bellows, judge, charge of, p. 170. 
Births, record of, p. 135. 
Boating, obstructions of, p. 217, s. 10. 
Bond, by town officer, form of, p. 80, 

s. 23. 
Boundary upon rivers, p. 29. 
Bounties to soldiers, p. 12, s. 19. 

Upon wild animals, p. 156, ss. 1, 2, 3. 
Brawls and tumults, p. 390. 
Bribery and intimidation, p. 55. 
Bridges, by-laws for, p. 264. 
Bushel, what to contain, p. 148. 
Butchers, sales by, p. 152, s. 22. 
By-laws by towns, p. 7. 
Carts and sleds, etc., p. 391, s. 7, p. 

392, ss. 12, 13. 
Case, action of against officers, p. 81, s. 30. 
Cattle guards and crossings, pp. 

266-268. 
Cemeteries, by towns, pp. 7, 411. 
Certiorari, writ of, p. 93, s. 8 (b). 
Charcoal measures, p. 151, s 18. 
CHECK-LIST, BY TOWNS, pp. 43, 64. 

By school districts, pp. 288, 289, ss. 16, 
17. 
City marshal, p. 77 (1), p. 408. 

cities and Wards, pp. 398-410. 

City councils, p. 411. 
City clerk, p. 408. 
City officers, p. 408. 
Common council, p. 405. 
Mayor of cities, p. 403. 
Mayor and aldermen, p. 405. 



Clerk of the market, p. 76, s. 2. 
COLLECTOR OF TAXES, p. 76, s. 2, p. 

80, ss. 21, 23, pp. 87, 183. 
Commons and parks, p. 84, ss. 24, 25. 
Connecticut river, towns upon, p. 29, 

s. 1 (a). 
Constables, choice of and duties, p. 75, 

p. 88, s. 5. 
Not liable upon covenants, p. 201, s. 

20 (a). 
CONTESTED ELECTIONS, p. 70. 
CONSTRUCTION OF STATUTES, p. 1. 
Councillor, choice of, p. 65, s. 23. 
County commissioners, choice of, p. 70, 

ss. 25-28. 
County officers, choice of, p. 70, ss. 

25-28. 
County sealer, duties of, p. 148, ss. 3, 4 
County treasurer, choice of, p. 70, ss. 

25-28. 
Covenants in collector's deed, p. 

201, s 20 (a). 
Creditor's bill, filed with clerk, p. 85, 

s. 43. 
Culler of staves, p. 70, s. 2, p. 143. 
Culverts in highways, p. 245, s. 21 (e). 
Dealers in old metals, p. 153. 
Deaths, records of, p. 135. 
Decency, offences against, pp. 390, 411. 
Discount upon taxes, p. 185, s. 16. 
DISORDERLY PERSONS, pp. 390, 411. 
Distribution of statutes, etc., p. 16, 

s. 40. 
Dogs, injuries by and taxes upon, p. 156. 
Domicil, meaning of, p. 47. 
DRAWING JURORS, p. 97. 
Drunkenness, pp. 390, 411. 
Dwelling place or house, what is, 

p. 47. 
ELECTORS OF PRESIDENT, p. 73. 
ERRATA, p. 417. 
Estoppel, applies to towns, p. 10, s. 5 

(g), p. 31, s. 7 (e), p. 335, s. 13 (1). 
Applies to the state, p. 31, s. 7 (c). 
EXECUTIONS AGAINST TOWNS, p. 18. 

And school districts, p. 18. 
EXTENT AGAINST THE COLLECTOR 

AND TOWNS, p. 19, s. 9, p 209, ss. 

4, 5, 6. 
Fast driving, p. 312, s. 11, p. 411. 
FENCES AND COMMON FlELDS,p. 102 
Ferries, towns may provide, p. 14, s. 26. 
Filing papers by clerk, p. 85, s. 44. 
Fire crackers, p. 391, s. 5. 
FIREWARDS AND FIREMEN, p. 363. 
Fishing wardens, choice of, p. 76, s. 2. 
FLOATING TIMBER, p. 127. 



426 



INDEX. 



Fortune-tellers, p. 392, s. 14, p. 411. 

Fruit measures, p. 151, s. 17. 

Fruits and fruit trees protected, 

p. 390. 
Funding debts of towns, p. 12, s. 19. 
Gamblers, p. 391, s. 4. p. 413, s. 11, in. 
Gardens and orchards, protection of, 

p. 390. 
Gas-light companies, p. 269, ss. 32, 33. 
Governor, choice of, p. 65, ss. 1-3. 
Guide-boards, pp. 264-5. 
Gunpowder, care of, pp. 373, 411. 
GUARDIANS, p. 320. 
Hacks, regulations for, p. 394, s. 7, p. 411. 
Health officers, choice of and duties, 
pp. 385, 388, 411. 
Towns not liable for, p. 9, s. 5 (b). 
Heaped measures, p. 151. s. 17. 
HEARING BEFORE TOWN OFFICERS, 

p. 91. 
HIGHWAYS, pp. 214-264, 411. 
Discontinuing, p. 215. 
Laying out, p. 215. 
Making and repairing, p. 240. 
Not in any town, p. 251. 
Removal of incumbrances, p. 260. 
Special damage to travelers, p. 253. 
Special provisions for, p. 264. 
What are highways, p. 250, s. 41 (1). 
Highway districts, p. 240. 
Highway suryeyors, p. 240. 

When towns liable for, p. 9, s. 5 (b), 
p. 240. 
Highway tax, pp. 201, 240. 
Highways, willful injuries to, p. 247, 

ss. 28, 29. 
Histories of towns, p. 14, s. 27. 
Hogreeves, choice of, p. 76, s. 2. 
Holding over by officers, p. 76, s. 5. 
Homestead, purchase of, p. 324, ss. 12-15. 
House of correction, p. 390. 
Hundred weight, what is, p. 151, s. 15. 
Insane persons, guardians of, p. 320. 

Settlement of, p. 333, s. 8 (i), s. 16 (a). 
Insanity, cause of removal, p. 87. 
Incumbering streets, p. 391, s. 7, p. 411 
Injunctions against towns, p. 10, 
s. 5 (d). 
Against school districts, p. 302, s. 8 (1). 
INSPECTORS OF WOOD AND LUM- 
BER, p. 143. 
Interest upon taxes, p. 185, s. 12. 
Junk, dealers in, p. 155, s. 7, p. 411, 
Jugglers, punished, p. 392, s. 14. 
Jurors, how drawn, p. 97. 
Lascivious persons, pp. 390, 411. 
Liquor cases, selectmen to prosecute, 

p. 83, s. 5. 
List of taxes, form of, pp. 183, 196. 
Lists of stockholders, p. 85, s. 45. 
Lottery dealers, p. 391, s. 4. 
Marriage, age of consent, p. 330. 
On Sunday, is valid, p. 396, s. 1 (1). 
Paupers, marriage of, p. 331, s. 2 (a). 
MARRIAGES, BIRTHS AND DEATHS, 

p. 135. 
MASTERS AND APPRENTICES, p. 315. 
Master of vessel, bond by, p. 391, ss. 

9, 10. 
Meeting-houses, sales of, etc., p. 17. 

Are public places, p. 36, s. 10 (c). 
Measurers of wood, p. 76, s. 2. 



MILITIA, p. 19. 

Milk, sale of, p. 153. 
MILLS AND THEIR REPAIRS, p. 130. 
Ministerial lots, title to, p. 15, s. 30 (a). 
Moderator, choice of and duties, pp. 
35, 76. 
Of school districts, p. 289, ss. 19-21. 
Mortgages, record of, p 86, ss. 46, 47. 
Navigable waters, p. 217, s. 10. 
NIGHT WATCHMEN, p. 393. 
Necessity, way by, p. 250, s. 45. 
Notes by towns, p. 10. s. 5 (e). 
NUISANCES INJURIOUS TO 

HEALTH, p. 385. 
Oath of office, pp. 77, 78. 
Obscene books, etc., p. 390. 
Official bond, p. 87. 
Overseers of the poor, choice of, p. 

76. s. 2. 
Parishes, when towns, p. 8, s. 2. 
PAUPERISM AND ITS PREVENTION, 
pp. 320-355. 
Bastard children, p. 355. 
Binaing out paupers, pp. 344, 338, s. 5. 
County paupers, p. 337. 
Furnishing relief, p. 342. 
Guardians of insane, p. 347. 
Guardians of spendthrifts, p. 347. 
Insane persons, p. 347. 
Masters and apprentices, p. 315. 
Poor farm, p. 388. 
Settlement, p. 330. 
Spendthrifts, p. 347. 
Suits for supplies, p. 349. 
PEDDLERS AND TRANSIENT TRA- 
DERS, p. 153. 
Perambulations of town lines, p. 29. 
Pest-houses, may be licensed, p. 389. 
Pestilential diseases, p. 388. 
Petitions to legislature, p. 16, s. 38. 

To court, form of, p. 33, s. 16, p. 215. 
Pig-styes and privies, p. 385. 
Plank, purchase of, p. 240. 
Pleasure travel, road for, p. 215, s. 1, 

(b). 
Police court, towns may provide, p. 
392, s. 16. 
In cities, p. 416, s. 13. 
POLICE OFFICERS, p. 393. 

In cities, p. 409, s. 8, p. 413, s. 11, II. 
Towns are not liable for, p. 9, s. 5 (b) . 
POUNDS AND IMPOUNDING, p. 114. 
Powder magazine, p. 76, s. 4. 

Sale and transportation of, p. 377, ss. 
4, 6, p. 411. 
Prison charges, liability for, p. 15, s.32. 
Property, injuries to, p. 39. 
PROPRIETARY RECORDS, p. 27. 
Prescription, title by, p. 222, s. 30 (1). 
Private way, p. 240. 
Prudential affairs, meaning of, p. 82, 

(1). 
Public documents, distribution of, p. 

16, s. 40. 
Public grounds, protection of, p. 215, 

s. 1 (a), p. 263, ss. 9-11. 
Public landing, p. 222, s. 29 (f). 
Public libraries, p. 14, s. 28. 
Public parks and commons, p. 14. 
Public places, meaning of, p. 36, s. 10 

(a). 
Quarantine, p. 389. 



INDEX. 



427 



Rafting and boating, p. 217, s. 1. 
Railroad commissioners, choice of, p. 

67, s. 11. 
Railroad crossings, pp. 266-268. 
Railroad subscriptions, p. 11, s. 12. 
Railroads, highway over, p. 215. 
Railroads, injuries from, p. 258. 
Railroads, rights and duties of, p. 164. 

Damages for, p. 82, s. 32, p. 87, s. 48. 

Stock in railroad, p. 85, s. 45. 
Raising money by towns, p. 8. 

By cities, pp. 8, 411. 

By school districts, p. 294. 
Ratable polls, what are, p. 68, s. 14. 

Certificate of p. 67, s. 13. 
Reform school, expenses at, pp. 15, 16, 

s. 33. 
Register of deeds, choice of, p. 70, ss. 

25-28. 
REGULATING CHECK-LIST, p. 43. 

In school districts, p. 288, ss. 16, 17. 
REGULATIONS OF POLICE, pp. 364- 

398. 
Religious meetings protected, p. 397. 
REPRESENTATIVES IN CONGRESS, 

p. 71. 
Representatives to general court, 

p. 64. 
Residence, meaning of, p. 49, s. 14, p. 

164, s. 1 (1). 
Return of votes and forms of, p. 64. 
Rewards, selectmen may offer, p. 82, s.'36. 
RIOTS, p. 24. 

Rogues and vagabonds, p. 392, s. 14. 
Running timber, p. 217, s. 10. 
SAFE-KEEPING OF GUNPOWDER, pp. 

373, 411. 
School committee, choice of, p. 76, s. 1. 

Duties of, p. 300. 

Hearings before, p. 92, s. 6. 
School lots, title to, p. 15, s. 30 (a). 
School tax, p. 177, s. 20. 
SCHOOLS AND SCHOOL DISTRICTS, 
p. 270-314. 

Board of education, p. 312. 

Factory children, pp. 309, 319. 

High schools, p. 307. 

Inj unction against district, p. 302, s. 
8(1). 

Meetings and officers, p. 284. 

Prudential committee, p. 289. 

Religious exercises, p. 300. 

Scholars, p. 309. 

School committee, p. 300. 

School districts, p. 273. 

School-houses, p. 294. 

School meetings, p. 284. 

School money, p. 273. 

Teachers, pp. 300, 309. 

Teachers' institutes, p. 314, s. 8. 

Text-hooks, change of, p. 300. 



Sealers of weights and measures, 

p. 76, s. 2, p. 148. 
Selectmen, choice of and duties, pp. 82, 

83. 
Hearings before, pp. 91, 92. 
Include aldermen, p. 4, s. 27. 
Settlement of paupers, pp. 330-337. 

Place of settlement, pp. 47, 330. 
Sewers in highways and streets, p . 

245, s. 21 (d), p. 411. 
Torts and negligence of towns, p. 9, 

s. 5(a), (b). 
Town, meaning of, p. 2, s. 6. 
Town clerk, choice of and duties, pp. 

76^87. 
Includes city or ward clerks, p. 4, s. 

27. 
Town histories, p. 14, s. 27. 
Town libraries, p. 14, ss. 28-30. 
TOWN LINES, p. 29. 
TOWN MEETINGS, p. 34. 
TOWN OFFICERS, p. 75. 
Hearing before, p. 91. 
Town orders, p. 10, s. 5 (e). 
Town sealer, choice of and duties, pp. 

149, 150. 
Town treasurer, choice of and duties, 

pp. 87, 89, 90. 
TOWNS, powers and duties, p. 7. 
Travelers, injuries to, p. 253. 
Treating at elections, p. 55, s. 38. 
Trees and shrubs protected, pp. 396, 

411. 
Trustee, when towns may be, p. 15, s. 

30 (a). 
Trustee suit aginst towns, p. 16, s. 

39. 
Turning to the. right, pp. 259, 260. 
Turnpike roads, pp. 215, 250. 
Uncovered ditch, p. 245, s. 21. 
Unincorporated places, p. 16, s. 35. 
VACANCIES, p. 87. 
VILLAGE FIRE DISTRICTS, p. 371. 
Void process no protection, p. 81 (1). 
VOTERS, who are, and rights of, p. 47. 
Waiver of objections, p. 91, p. 236, s. 

64 (1). 
WARNING TOWN MEETINGS, p. 34. 
Warrant to collector, p. 186. 
To constable, p. 78, ss. 10, 11. 
To surveyor of highways, p. 242, s. 8. 
Watering trough, p. 182, s. 4. 
Weighers of beef, pp. 51, 152. 
WEIGHTS AND MEASURES, p. 148. 
Widening and straightening, p. 215. 
WILD ANIMALS, DOGS AND SHEEP, 

p. 156. 
Will made on Sunday, p. 396, s. 1 (1). 
Wood and lumber, pp. 143, 253, 260. 
Writing includes printing, p. 3, s. 

23. 



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LIBRARY OF CONGRESS 



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